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SUBSCRIPTION AGREEMENT (EULA)
1 ACKNOWLEDGEMENT
The parties referred to herein acknowledge and agree to the matters set out hereunder in this Subscription Agreement.
To complete your downloading and or installation of the Software, you (the Subscriber) must accept the terms and conditions of this Agreement by electronically checking the box commencing "I accept"; but before doing so, we urge you to read this Agreement.
If for any reason (including downloading or installing the software) you check the box commencing “I accept” without having read and understood this Agreement (which is a course of conduct which we do not recommend you to follow), you should revisit and read this Agreement as soon as possible, and in any case you should do so before you commence using the Software or the Service.
Use of the Software and of the Service is undertaken on the basis of these terms and conditions. If you choose not to read these terms and conditions, but use the Software and or the Service, then you are deemed to have accepted these terms and conditions as though you had read them, and understood them, and explicitly agreed to these terms and conditions.
This Agreement governs your use of the Service and the Software as defined hereunder and all related components thereof, and is a legally binding agreement which creates important legal obligations.
2DEFINITIONS
In this agreement:
“Agreement”: means this agreement (which is also called the SOS Online Backup Subscription Agreement or End User License Agreement or EULA) between the Licensor and the Subscriber, as modified from time to time.
“Licensor”: means Safe Offsite Pty Ltd (ACN 108 414 302).
“Licensor`s Address”: means 39 Brookfield Road, Kenmore, Queensland, 4069, Australia.
“Licensor`s E-mail Address”: means sos@safeoffsite.com.au
“Licensor`s Associates”: includes all parties associated in any way whatsoever with the Licensor (and at the Licensor`s sole discretion includes without limitation the Licensor`s suppliers, licensors, employees, officers, parents, subsidiaries, affiliates, associates, directors, contractors, sub-contractors, co-branders, partners, attorneys, or agents, and include natural persons or corporations or other entities).
“Service”: means the Safe OffSite (SOS) backup service for storage and recovery of computer files as referred to herein.
“Software”: means the SOS software (also called the SOS Windows Client software) which is installed on your computer and through which the Service is delivered; and includes all related components of the Software, and includes any upgrades and amendments to the Software from time to time.
“Subscriber”: means the person or corporation entitled, pursuant to this Agreement, to use the Software or the Service, and includes any person who does in fact use the Software or the Service on any basis whatsoever. The Subscriber is also referred to as “you” in this Agreement.
“Subscription Agreement”: means this agreement as modified from time to time. The Subscription Agreement is also known as an End User License Agreement (EULA).
“We”: means the Licensor.
“You”: means the Subscriber.
3ACCESS TO THE SERVICE
If you use the Service, you become a Subscriber to the Service, whether you are a paying subscriber, or a subscriber who is using the Service on a free trial basis, or a subscriber who is evaluating a beta release of the Software, or otherwise.
By using the Service, the Subscriber agrees to use the Service and the Software on the basis of this Agreement. Please read this Agreement carefully because it forms the basis of the legal relationship between you (you means the Subscriber) and any other users on the one hand, and the Licensor on the other hand.
Subscribers and other users of the Software or any part thereof, and or of the Service or any part thereof, must agree to the following terms and conditions before using the Software or the Service. Please read them carefully, and ensure that any other users to read them carefully.
The Licensor recommends that you print and retain copies of this Agreement as amended from time to time for your records, and that you keep abreast of any modifications to this Agreement from time to time by reference to the Software or to the Licensor`s website where you may find the latest version of this Agreement.
4AUTHORITY & ACKNOWLEDGEMENT & ASSERTION
The Licensor warrants that it is authorized to enter into this Agreement in respect of the Software and the Service for the purpose of offering the Service to Subscribers.
By using the Software or the Service, you (and if appropriate, the Subscriber) assert that any information which you give in relation to the use thereof is correct, and you assert that either you have the legal capacity to enter into this Agreement (including that you have attained the age of majority in the state or country in which you live), or that you are using the Software and or the Service with the approval of and under the supervision and direction of someone who has the legal capacity to enter into this Agreement, and that party is responsible for your use of the Software and the Service.
By using the Service or the Software, the Subscriber acknowledges that the Subscriber accepts this Agreement without modification by the Subscriber in any way.
The Subscriber acknowledges that it is essential to this Agreement that this Agreement contains disclaimers of warranties by the Licensor, and limited liability upon the Licensor and the Licensor`s Associates, and limited remedies available to the Subscriber, and an indemnity by the Subscriber to the Licensor and the Licensor`s Associates in respect of any further liability beyond the limited remedies.
5PARTIES
This Agreement is between you (you are the Subscriber) and the Licensor for the use of the Service.
If the Subscriber allows any other person or corporation (Designated Users) to use the Service, the Subscriber is wholly responsible for such Designated User`s conduct as if such conduct were the Subscriber`s conduct.
The Subscriber is responsible for ensuring that any and all users of the Service (whether Designated Users or not) abide by the terms of this Subscription Agreement.
You and any other users of the Software and or the Service agree that this Agreement binds you, your Designated Users, and any other person who uses the Software or the Service through your account with the Licensor.
6LICENSE TO USE SOFTWARE, SUBSCRIPTION TO THE SERVICE
Pursuant to this Agreement, as long as you comply with the terms of this Agreement, you (the Subscriber) are hereby granted a license to use the Software. The Software is only licensed to you, and is not sold to you.
The Licensor hereby grants, and you hereby accept, a non-assignable, non-exclusive, non-transferable, non-sub-licensable, limited license to use the Software in the manner in which the Software is intended to be used, and on the basis of this Agreement, for the term for which you hold either a free trial subscription to the Service or a paid up subscription to the Service, after which you acknowledge that you have no right to use the Service or the Software and after which you agree to uninstall the Software.
If you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Service or the Software and you agree to uninstall the Software forthwith upon your not continuing to abide by the terms of this Agreement.
7PURPOSE OF THE SERVICE
The purpose of the Service is to provide to the Subscriber a backup of files nominated by the Subscriber to a safe offsite location from which such files can be restored in the event of those files being unavailable on the Subscriber`s computer for any reason (such as theft, fire, hard disc failure, or for any other reason).
The Service is designed to operate in the early hours of the morning when its use of your computer`s resources is least likely to impact on your use of the computer, and when internet bandwidth availability is most likely to be at its maximum.
To minimize the use of your computer`s resources and of your internet bandwidth, the Software has been designed to only backup the files which you have changed since your last backup, and to only backup the parts of each file which you have changed.
The Service can also be used for more frequent backup (than daily backup) by use of the “backup now” function of the Software.
8 THE SERVICE
The Service is made available by the Licensor to the Subscriber during the period of any free trial of the Service, and for the period the Subscriber maintains a paid subscription to the Service.
Use of the Service consists of a Subscriber to the Service electronically transmitting encrypted computer data (Data) via the Software over the Internet into a location (the Location) maintained by the Licensor or the Licensor`s Associates, and of the storing of that encrypted computer Data at that Location, and should retrieval of that Data be required, of the Subscriber retrieving a copy of the said Data.
The Subscriber acknowledges that for backups to occur on a daily automatic basis as intended, the Subscriber`s computer must be turned on, powered up, and connected to the internet.
Prior to the transmission of the Subscriber`s data, the data is encrypted, and is stored by the Licensor or the Licensor`s Associates as encrypted data (Data). During recovery, the Data is de-encrypted by the Software to restore the Subscriber`s data to the Subscriber`s computer.
9THE SOFTWARE
The Service is provided through the Software which is installed on your computer. From time to time the Licensor may modify the Software through the auto-update feature of the Software which automatically upgrades the Software for the purpose of thereby enhancing the Service.
Your continued use of the Service constitutes your acceptance of automatic updates of the Software.
Reference to the Software includes reference to all electronic material made available to the Subscriber at any time, and includes all associated software, associated modules, user documentation, user manuals, installation guides, training materials, and if any, to a new release or update, being a subsequent release or update of a component of the Software which provides either one or more of the following modifications to the Software: being a patch, fix, modification, error correction, or enhanced functionality of the Software.
10PAYMENT
The Subscriber is not required to pay for downloading or installing the Software, instead a fee-paying Subscriber pays for the use of the Service.
Upon the Subscriber completing installation of the Software, the Subscriber shall be allowed to use the Service free of charge for the number of days indicated when the Subscriber downloaded the Software (hereinafter referred to as the "Evaluation Period").
After the expiry of the Evaluation Period, if the Subscriber continues to use the Service, the Subscriber shall automatically be charged all applicable fees for the Service based upon the subscription rate for the subscription selected by the Subscriber.
Charges for the use of the Service are based on the size of the account selected by the Subscriber, and on the duration of the Service selected by the Subscriber.
Unless otherwise agreed, the Subscriber shall pay in advance any subscription or fees and other charges incurred by the Subscriber for the use of the Service at the subscription rates in effect for the billing period in which those charges are incurred.
For situations where credit card payment is utilized, the Subscriber shall maintain a current authorization for the Licensor to debit the Subscriber`s Credit Card account for such amounts as become due from time to time, so that the Subscriber can continue a paid up subscription to the Service.
For situations where the Subscriber`s Credit Card issuing financial institution has been notified of a payment dispute, the Subscriber agrees that proof by the Licensor of Service usage by the Subscriber constitutes the Subscriber`s authorization to submit a payment request to the Credit Card issuing financial institution.
The Subscriber shall pay all applicable taxes, if any, related to use of the Service by the Subscriber or the Subscriber`s Designated Users.
For Subscribers who do not hold credit cards, the Licensor may choose to bill the Subscriber through an invoice, in which case full payment for invoices issued in any given month must be received by the Licensor within the number of days stated on the invoice from the date shown on the invoice, failing which the Service may be suspended or terminated. The Subscriber accepts full responsibility for proactively ensuring that fees are paid within the stated timeframes, and if an invoice is not received when due, the Subscriber is responsible for following up with the Licensor to ensure that payment is made to maintain the currency of the subscription. At the discretion of the Licensor, unpaid invoices are subject to interest at the rate of 1.0% per month on any outstanding balance, plus all expenses of collection, if any.
If the Subscriber`s account is not paid in accordance with the agreed payment terms (which generally means for fee-paying subscriptions that the subscription is paid in advance) for any period, the Licensor may, in addition to any other rights, at its sole discretion and without notice to the Subscriber:
(a) suspend the obligation of the Licensor to perform under this Agreement, and deny the Subscriber`s and the Subscriber`s Designated Users` access to and use of the Service until the Subscriber`s subscription is back in good standing, or
(b) terminate the Subscriber`s and the Subscriber`s Designated Users` access to and use of the Service.
From time to time the Licensor may offer special promotional or free trial offers at the Licensor`s discretion, and the Licensor reserves the right to discontinue or modify those offers at the Licensor`s sole discretion. Any free trial offer entitles a new Subscriber to a one-time free trial usage of the Service. Free trial terms may vary from offer to offer. At the end of the free trial period, if you continue to use the Service, you may be automatically subscribed, and if so, if you have provided credit card details to the Licensor, the Licensor may bill your credit card for the fees to the Service plan selected by the Subscriber. If the Subscriber wishes to terminate the Service at the end of the free trial period, and does not want to subscribe to the Service, the Subscriber must cancel the free trial Service before the end of the free trial period. To cancel your Service, follow the instructions set out in the Software.
11AUTOMATIC RENEWAL
If you continue using the Service you agree to permit the Licensor to automatically renew your subscription to the Service by charging the credit card number which you have provided to the Licensor. In that event your subscription will be automatically renewed within fourteen days prior to the expiration of your subscription at the then current price.
If you do not want automatic renewal to occur, you must provide the Licensor with 14 days written notice as set out hereunder.
12CANCELLATION AND TERMINATION
The Subscriber may cancel a free trial Service at any time during the free trial period on one day`s written notice given by the Subscriber by email to the Licensor at the Licensor`s email address.
The Subscriber may cancel a fee-paying Service upon fourteen (14) days written notice given by the Subscriber by email to the Licensor at the Licensor`s email address; and if the Subscriber cancels the Service without providing the Licensor with fourteen (14) days written notice of the Subscriber`s intention to terminate use of the Service, the Subscriber must pay for that period whether the Subscriber uses it or not.
In the event of the Subscriber canceling the Service, the Licensor will not provide a refund for the unused portion of the Service, if any, paid in advance by the Subscriber.
The Licensor may cancel the Subscriber`s Service with or without cause upon thirty (30) day`s prior written notice given by the Licensor by at least two emails sent to the Subscriber at the Subscriber`s address as shown in the Subscriber`s account details.
Following the date of cancellation, the Subscriber`s access to any of the Subscriber`s data stored through the Service may be permanently terminated.
13PERMITTED USES
The Subscriber is hereby authorized to use the Service for a maximum of the storage capacity (specified in megabytes) as paid for by the Subscriber to the Licensor according to the subscription rates published by the Licensor from time to time.
If the Subscriber requires additional storage, the Subscriber may purchase additional subscriptions for services, or may change the Subscriber`s account size by contacting the Licensor and agreeing to pay a higher subscription rate.
The Subscriber may use the Service on more than one computer, and may install the Software on the Subscriber`s computer, or on multiple computers, or on a network of computers.
14USES NOT PERMITTED
You (the Subscriber) may not assign nor grant sub-licenses or sub-subscriptions or leases in relation to the Software or the Service, nor may you sell, lend, license, rent, or in any manner distribute the Software or make the Software available to other parties for value or otherwise.
The Subscriber may not use the Software or the Service in any manner which harms any party in any way whatsoever, or in a manner which infringes on the intellectual property rights of any third party or of the Licensor or of the Licensor`s Associates.
The Subscriber agrees not to (nor to assist any third party to do so directly or indirectly or in any manner whatsoever) reverse engineer, disassemble, decompile, revise, translate, retarget, redevelop, re-engineer, use software evolution or synchronized refinement or forward engineering in relation to the Software, or any part of the Software, or in any way derive or attempt to derive any source code from the Software or from any part of the Software.
The Subscriber agrees not to (nor to assist any third party to do so directly or indirectly or in any manner whatsoever) modify, port, translate, or create derivative works of the Software or the Service nor to undertake or disclose the results of any performance tests or qualitative analysis on the Software or the Service to any third party without the prior written consent of the Licensor.
The Subscriber acknowledges that although the Service is intended for use with a network of computers, the Service is not intended for backing up files on servers.
The Subscriber may not use the Software or the Service in any manner which is illegal.
15ILLEGAL USE
The Subscriber shall not use the Service for storage, possession, or transmission of any information, (including without limitation, stolen materials, obscene materials, or child pornography) the possession, creation, or transmission of which violates any law, statute, ordinance or regulation, or is defamatory, libelous, unlawfully threatening, or unlawfully harassing, is obscene, or indecent in violation of applicable law, or to propagate any viruses, worms, Trojans, or other programming intended to damage any computer, computer system, or computer data, or to use the Software or the Service in any manner that may injure any party or property in any way whatsoever.
16 INTELLECTUAL PROPERTY
The Software and information provided through the Software and in relation to the Service is protected by copyright and other intellectual laws and treaties. The Licensor or its suppliers or the Licensor`s Associates own the title, copyright, and other intellectual property rights (Intellectual Property rights) associated with the Software and the Service. All rights not specifically granted