EULA - End User License Agreement
End User License Agreement
Last update: 22 January, 2009
PLEASE READ THIS AGREEMENT CAREFULLY
This license agreement is a legal agreement between you (either an individual or an entity) and Online Backup, Inc. DBA BackUPMAX. By downloading the software, clicking an "ACCEPT" button during installation or purchase, and every time you use the software, you are agreeing to be bound by the terms of this agreement.
DEFINITIONS: (a) "BackUPMAX," "we," and "us" means Online Backup, Inc. DBA BackUPMAX, its subsidiaries, owners, investors, vendors, suppliers, executives and employees. (b) "You," "subscribers," "your", "user," and "users" means the individual or entity using BackUPMAX products or services. (c) "Data," means all files you have backed up to the BackUPMAX service, and any other records associated with your BackUPMAX account. (d) "Service" means all services provided by BackUPMAX. (e) "Software" means the BackUPMAX application(s) installed on your computer.
GRANT OF LICENSE: This License Agreement permits you to use one copy of the BackUPMAX software on one computer, for purposes of accessing the BackUPMAX Service only. If you have signed up for multiple accounts with BackUPMAX, this License Agreement permits you to use one copy of the BackUPMAX software on each computer, one computer per account. This license is non-transferable, and non-sublicensable.
COPYRIGHT: The SOFTWARE and accompanying materials (including any images, "applets", photographs, animations, video, audio, music and text incorporated into the SOFTWARE and accompanying materials) is owned by BackUPMAX and is protected by United States copyright laws and international treaty provisions and all other applicable national laws. Therefore, you must treat the SOFTWARE and accompanying materials like any other copyrighted material (e.g. a book or musical recording) except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes or (b) transfer the SOFTWARE to a single hard disk provided you keep the original solely for backup or archival purposes. You may not copy the documentation accompanying the SOFTWARE. You may not repackage the Software for further distribution by any means.
ACCEPTABLE USE: You are solely responsible for your behavior and your data stored and retrieved using the BackUPMAX Service. You agree to indemnify, defend, and hold harmless BackUPMAX from any and all loss, cost, liability, and expense arising from or related to your data, your use of the Service, or your violation of these terms.
The BackUPMAX Software and Service are made available to you only for your personal use or for use within your own business (depending on the version of BackUPMAX to which you subscribe), which use must be in compliance with all applicable laws, rules and regulations and must not infringe or violate third party rights. Any unauthorized use of the BackUPMAX Software, Service, servers or networks is a violation of this Agreement and certain federal and state laws. Such violations may subject the unauthorized subscriber or user and his or her agents to civil and criminal penalties.
SERVICE-SPECIFIC RESTRICTIONS ON USE: Certain BackUPMAX products and subscription levels have certain limitations, including and not limited to the types of files you can back up, the schedule on which your backups operate, the bandwidth available to you, and the features available to you. You agree not to circumvent these limitations in any way, including and not limited to, circumventing settings that do not have a user interface, and using BackUPMAX Personal Edition for commercial applications.
SOFTWARE EDITIONS: BackUPMAX Personal Edition is for home or personal non-commercial use only. BackUPMAX Business Edition is for commercial business use. It is a material violation of this Agreement to use BackUPMAX Personal Edition for business use.
FILE PROTECTION: You are solely responsible for protecting the files on your computer by installing anti-virus software, updating your applications, password protecting your files, and preventing third party access to your computer. You understand that BackUPMAX may back up files that are no longer usable due to corruption from viruses, software malfunctions or other causes. This might result in you restoring files that are no longer usable. If your Data contains viruses or other malicious code, BackUPMAX may deactivate this code as a by-product of its encryption features; however, BackUPMAX will back up this code along with your Data. Upon restoration, this code may become re-activated. Such viruses and malicious code backed up by any one user will not affect other users while it is stored with the BackUPMAX service.
FILE RETENTION POLICY: BackUPMAX sets file retention policies according to the features of the account you subscribe to. You agree to carefully read and understand these file retention policies as they relate to your subscription, and to hold BackUPMAX harmless when it deletes data that falls outside the File Retention Policy associated with your account.
STORAGE SPACE QUOTA: Certain BackUPMAX accounts have storage quotas. If you use more storage space than the amount allocated to your account, you hereby authorize BackUPMAX to charge your credit card for the overage, according to the schedule currently posted on the BackUPMAX web site, or to refuse to accept further backups.
USERNAMES, PASSWORDS AND ENCRYPTION KEYS: BackUPMAX may require you to establish a Username, Password, and (optionally) an Encryption Key to protect your account and your Data stored with BackUPMAX. You are solely responsible for any consequences that arise in whole or in part from your compromise of your Username, Password, or Encryption Key. BackUPMAX assumes no liability to supply you with your Username, Password, or Encryption Key. You understand and agree that BackUPMAX cannot access your Data, and that if you forget or lose your Username, Password, or Encryption Key, BackUPMAX may not be able to restore your Data.
Your Data is encrypted before it is sent to the BackUPMAX data centers, and remains encrypted when it is stored there. If you used a Private Encryption Key, BackUPMAX cannot view the data you back up using the BackUPMAX service. If you forget your Private Encryption Key, you will not be able (and BackUPMAX cannot assist you) to restore your Data.
CONSENT TO COLLECT INFORMATION: The BackUPMAX service may collect non-personally identifiable information that resides on your computer including, and not limited to, statistics relating to backup times and status, performance metrics relating to the BackUPMAX Software, configuration settings, and file headers (but not the contents of files). This information collected will be sent to BackUPMAX and may be used by BackUPMAX without restriction. You agree that BackUPMAX may use such data as we see fit to improve our service to you.
CONSENT TO COLLECT INFORMATION RELEVANT TO THE REMOTE SECURITY SUITE: If you have subscribed to BackUPMAX''s Remote Security Suite (and ONLY if you have subscribed) you may, upon loss or theft of your computer, and only at your sole discretion, log into your account at the BackUPMAX web site and institute a series of aggressive data probing actions that may collect personal information from your computer and its surroundings, including, but not limited to, photographs, movies (with sound), keystrokes, and browser history, transmitting this information securely to the BackUPMAX data centers. By activating any action of the Remote Security Suite you hereby hold BackUPMAX harmless for the collection and storage of this information, including any personal intrusion and any other liability that may result from the use of this feature.
Through BackUPMAX''s Remote Security Suite you may also initiate the erasure or encryption of data on your computer (but not in the BackUPMAX data centers). You hereby hold BackUPMAX harmless for the loss of data on your computer that may result.
BackUPMAX may not be able to activate any action of the Remote Security Suite. You must activate the Remote Security Suite yourself by logging into your BackUPMAX account at our web site. Information captured by the Remote Security Suite is encrypted using your encryption key. Therefore, if you select your own encryption key instead of using BackUPMAX''s default key, only you can access such information. In this case, BackUPMAX can never view your data or other information associated with the Remote Security Suite, including, and not limited to, photographs, movies and sound, and may not be able to help you view such information.
NO LIABILITY FOR FAILURE OF THE REMOTE SECURITY SUITE Because the Remote Security Suite depends upon the full operation and internet connectivity of the computer it runs on, BackUPMAX accepts no liability for the failure of the Remote Security Suite to send any or all information to the BackUPMAX Data Centers. If the BackUPMAX application is disabled, or the computer is not connected to the Internet, the Remote Security Suite may not collect information, and may not transmit it to the BackUPMAX Data Centers. BackUPMAX accepts no liability for the usefulness of said information, nor of your ability or inability to interpret it or make use of it. It is entirely your responsibility to make use of the collected data, together with the links and instructions we send you. BackUPMAX will not file police reports. Some of the information collected by the Remote Security Suite depends on the proper operation (or existence of) a camera, microphone, Internet connection, wireless network card, and (for using its geolocation functions) the existence of wireless access points within range of the wireless network card, broadcasting their Service Set Identifiers (SSID). BackUPMAX accepts no liability, and you agree to hold us harmless, if the information from the Remote Security Suite is incomplete, nonexistant, or useless.
TERM: This Agreement becomes effective when you register for BackUPMAX services. It remains in effect until your account is terminated.
TERMINATION: You may terminate this Agreement at any time by uninstalling the BackUPMAX Software and canceling your subscription, following the instructions on the BackUPMAX web site. You will receive a pro-rata refund of the unused portion of your subscription fee.
This Agreement automatically terminates if you fail to comply with this Agreement. BackUPMAX reserves the right to refuse or discontinue any subscription at any time at its sole discretion. You agree that, upon termination, you will uninstall the BackUPMAX Software and that your subscription and access to the BackUPMAX service will immediately terminate.
Upon termination of paid accounts, BackUPMAX will use reasonable efforts to make your data available for you to download for a period of three (3) days. Notwithstanding, BackUPMAX is under no obligation to provide you with a copy of your Data after termination and may, at its sole discretion and without liability, destroy or retain any Data after termination.
The terms of the Sections entitled Consent to Collect Information, Copyright, Disclaimer of Warranties, Limitation of Liability, and Miscellaneous will survive termination of this Agreement.
RESTRICTED USES: You may not install or use this software on computers that are connected to life-saving or life-support medical equipment, nor on any equipment used in the production or administering of drugs or breathable gasses, nor on any equipment used in connection with nuclear, power generation, aviation or mass transit applications, nor with any application or on any computer that, through malfunction or misuse, could directly or indirectly cause personal injury, death, physical damage or destruction.
OTHER RESTRICTIONS: You hereby agree not to reverse engineer, decompile or disassemble the Software. You agree not to analyze the software, its data files, or transmission protocols in an attempt to discover its systems and methods of operation. You agree not to communicate to others any discovery of technical procedures, systems and methods, or protocol of the Software or Service. You hereby agree that the Software does not infringe on any patent, copyright, trademark, or other intellectual property rights under your control either directly or indirectly, or under the control of any company or other entity to which you report. You agree to hold harmless BackUPMAX, its suppliers, vendors, owners and employees in any intellectual property dispute that might arise from the discovery or disclosure of such information by you as a result of a violation of this paragraph. You may not use the BackUPMAX Software with any service or server other than the BackUPMAX Service. You may not access the BackUPMAX Service with any software not provided to you by BackUPMAX.
CUSTOMER SUPPORT: BackUPMAX may, at its sole discretion, provide customer support through whatever means and on whatever schedule we set. This means that live customer support might not be provided during certain hours or on certain days (for example, US National Holidays), and might be provided only through certain channels or vehicles such as email, live online chat, telephone, remote control, or an automated online help system. We may offer support using technicians in the USA or any other country. BackUPMAX maintains an automated online help system that operates 24x7x365, which is capable of automatically solving as many as 90% of cases without the intervention of a live technician.
BackUPMAX cannot provide support for, and is not responsible for, problems affecting the Service which are caused by any external software, hardware, or service. This includes routers, firewalls, network interface devices, Internet connections, antivirus software, disk management software, or any other software, hardware, or service that might hamper the proper operation of the BackUPMAX Software or Service. You agree to properly and promptly report support issues through the proper channels, to completely explain your issue, to read your email or check with the Online Help Desk System to view our response, and to reply promptly when we request further information and/or offer suggestions.
BackUPMAX is not responsible for your receipt of our emails, nor of our receipt of your emails. If you are not receiving our emailed replies, check your spam filters, or make sure we have your correct email address. All emails from BackUPMAX come from an email address @backupmax.com. If we are not receiving your emails, make sure you are sending them to the correct address, that your emails are not being blocked by outbound spam filters, and that your mail server is not on any spam lists or real time black hole lists. Because of difficulties imposed by spam software, we strongly suggest you use our web-based Help and Contact systems instead of email.
REMOTE SUPPORT: BackUPMAX may, at its sole discretion, offer you the option of having a support technician remotely control your computer in order to resolve an issue. You will have the option of accepting or declining this offer. BackUPMAX cannot access your computer without your approval. If you approve, the support technician will then be able to control your mouse and keyboard, view your monitor, and have full access to your computer and its unencrypted data.
In this case, you hereby give special permission for BackUPMAX to access your personal and unencrypted data on your computer. You hold BackUPMAX and the attending support technician harmless for any liability that might arise as a result of a remote control operation, including and not limited to disclosure of personal information, disruption of business, and loss of data. Our remote control software will be automatically removed from your computer when our technician disconnects. You hereby re-affirm your acceptance of the sections of this Agreement entitled LIMITED WARRANTY, CUSTOMER REMEDIES, and NO OTHER WARRANTIES and agree that those sections apply fully to your remote control session.
SOFTWARE UPDATES: From time to time BackUPMAX releases updates for the Software. The Software has the ability to automatically update itself by downloading an update and applying it. However, because firewalls, routers, and anti-virus software can sometimes block the download, BackUPMAX is not liable for the failure of this update process. You are responsible for making sure your installation of the Software is up to date. BackUPMAX may, at its sole discretion, refuse to provide support (but not Services) for software that is older than the current version.
U.S. GOVERNMENT RESTRICTED RIGHTS: The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-- Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Online Backup, Inc. DBA BackUPMAX / 2565 Horizon Lake Dr. St 110 / Memphis, TN 38133 USA.
EXPORT CONTROLS: You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, North Korea, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department''s list of Specially Designated Nationals or the U.S. Commerce Department''s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. Personally, we would love to see Cuba come off the list. We''ve always wanted to visit there.
CHANGES TO THIS AGREEMENT AND SERVICE: BackUPMAX reserves the right to make changes to, modify, suspend, or discontinue providing service in part or in whole at its sole discretion. BackUPMAX will make reasonable efforts to notify you of any such event by sending an email to the email address associated with your BackUPMAX account and/or by posting a notice on the BackUPMAX website. Under no conditions will BackUPMAX be liable to you or to any third party for any event defined in this paragraph. BackUPMAX reserves the right to modify this Agreement without liability to you. The modified agreement will become effective for existing subscribers 15 days after it has been posted on the BackUPMAX web site. You agree to be bound by the terms of the modified agreement. If you do not agree, you must terminate your subscription immediately.
DISCLAIMER OF WARRANTIES: BACKUPMAX SOFTWARE AND SERVICE ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. BACKUPMAX EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFT