FIRSTBACKUP SOFTWARE END-USER LICENSE AGREEMENT

Last Modified: 5/19/2012

 

 

1.       DEFINITIONS
(a)   "BISSO" means Bisso Technologies, LLC, and its licensors, if any;

(b)   “Passwords” means confidential passwords and/or manual set encryption keys.

(c)   “Person” means either natural or a fictitious entity.

(d)   “SERVICE” means the right of a SUBSCRIBER to electronically transmit and store computer data using either a private data communications network, or the Internet into a location maintained by BISSO and to retrieve said data as required.

(e)   "SOFTWARE" means only the FirstBackup software program(s) and third party software programs, in each case, supplied by BISSO herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation.   Any updates to such SOFTWARE which you are entitled to receive and that has been provided to you by BISSO shall also mean SOFTWARE for purposes of this Agreement.

(f)    “SUBSCRIBER” means a person, or a person’s designated users, who maintains a paid subscription to the SERVICE.

 

2.       USE OF SERVICE

SUBSCRIBER agrees to:

·         Maintain a current license of SOFTWARE; and

·         Maintain a primary electronic file of all materials stored by the SERVICE.

 

BISSO agrees to:

·         Provide SERVICE to the SUBSCRIBER during the period SUBSCRIBER maintains a paid subscription to the SERVICE.

 

3.       PAYMENT

In consideration for the Service, SUBSCRIBER shall pay in advance any registration or service fees and other charges incurred, along with all applicable taxes, by SUBSCRIBER at the rates in effect for the billing period in which those charges are incurred. If SUBSCRIBER wishes to utilize a credit card payment, the SUBSCRIBER hereby agrees to a monthly charge of such amounts. SUBSCRIBER further agrees to provide and maintain current mailing and electronic address to BISSO for all communications. For all payment disputes, SUBSCRIBER hereby agrees that the usage of SERVICE is proof of authorization to submit payment request. THERE WILL BE A $25.00 ADMINISTRAIVE FEE FOR EACH SUBSCRIBER-INITIATED CHARGE DISPUTE.

The SUBSCRIBER’s fee is calculated based on the amount of storage space used on BISSO’s servers for SUBSCRIBER’s data backup and based on the BISSO’s pricing model. The SUBSCRIBER’s data requirements are reviewed on a monthly basis. SUBSCRIBER agrees to be billed at the rate based on the usage the SUBSCRIBER’s storage requirements exceed pre-authorized storage limit.

4.       CONFIDENTIALITY AND PASSWORDS

No bailment or similar obligation is created between SUBSCRIBER and BISSO with respect to SUBSCRIBER’s data. SUBSCRIBER is solely responsible for maintaining the confidentiality of passwords, including restricting the use of the passwords by SUBSCRIBER’s designated users. SUBSCRIBER shall be responsible for all use of the SERVICE accessed through SUBSCRIBER’s password.

SUBSCRIBER understands and hereby agrees that BISSO is not responsible for providing SUBSCRIBER with passwords. In the event of a forgotten password, and without a correct password, SUBSCRIBER’s data will remain encrypted and inaccessible.

SUBSCRIBER understands and hereby agrees that BISSO shall have no responsibility or obligation to SUBSCRIBER to monitor, supervise, or oversee the contents of files stored on the service. SUBSCRIBER further understands and agrees that SUBSCRIBER’s backup files maintained by BISSO are subject to, without SUBSCRIBER’s consent, examination by law enforcement officials or others upon presentation to BISSO a valid search warrant or subpoena.

5.       COMMUNICATION CIRCUITS

SUBSCRIBER is responsible for and must provide all telephone or other communication equipment and services necessary to access the SERVICE. All data files are transmitted over communication company circuits, which are wholly beyond the control and jurisdiction of BISSO and are maintained by the communications company. If these communication circuits are not functional for any reason, the data files may not accurately or completely reach BISSO’s facility or equipment. BISSO cannot be responsible for the continued operation of functioning of these communication circuits nor the reliability of the data files received over them.

 

 

6.       TERM AND TERMINATION

This Agreement is effective until terminated. BISSO reserves the right to automatically terminate this Agreement, without notice to SUBSCRIBER, if SUBSCRIBER fails to comply with any term of this Agreement, including the non-payment of SERVICE fees. The SUBSCRIBER may terminate this Agreement at any time by discontinuing SERVICE with BISSO. To discontinue the SERVICE, the SUBSCRIBER must give a written notice to Bisso Technologies, LLC, 4448 NW Urbandale Dr, Urbandale, Iowa 50322. A cancellation notice may be submitted from the SUBSCRIBER’s account management page at https://my.firstbackup.com.

 

SUBSCRIBER understands and agrees that BISSO is authorized to delete all backup files and data from BISSO’s servers immediately upon termination of the SERVICE.

 

BISSO reserves the right, at its sole discretion and without notice to SUBSCRIBER, to

(a)     Suspend its performance under this Agreement and deny SUBSCRIBER access to and use of the SERVICE until SUBSCRIBER’s account is in good standing;

(b)     Terminate this Agreement and SUBSCRIBER’s access to and the use of the SERVICE;

(c)     Terminate the SERVICE to without cause upon thirty (30) days prior written notice;

(d)     Terminate the SERVICE immediately and without notice if SUBSCRIBER does any of the following:

·         Utilizes the SERVICE as a substitute for primary electronic file maintenance;

·         Utilizes the service for storage, possession or transmission of any materials which violate any state, local or federal law, including, but not limited to stolen materials, obscene materials or child pornography;

·         Harms, disrupt or otherwise engage in activity that diminishes the BISSO brand, Services, computer system or network;

·         Misrepresents SUBSCRIBER’S identity, impersonate any person or attempt to gain access to any Account, computers or networks related to the SERVICE, without authorization;

·         Attempts to interfere with any other person’s use of the SERVICE;

·         Uses the SERVICE inappropriate for SUBSCRIBER’s usage;

·         Uses the SERVICE in a manner that results in excessive bandwidth usage, as determined by BISSO;

·         Uses the SERVICE to store, backup or distribute any illegal files or data;

·         Not use the SERVICE to store, backup or distribute material protected by intellectual property rights of a third party unless SUBSCRIBER owns or has rights to such material;

·         Uses the SERVICE to store, backup or distribute material that contains viruses, Trojan horses, worms, corrupted files or any other similar software that may damage the operation of the SERVICE or another person’s computer or property;

·         Reverse-engineers, decompile, disassemble, modify or create derivative works of the SERVICE;

·         Alters or modifies and disabling mechanism which may be included in the SERVICE;

·         Assigns, sublicenses, rents, timeshares, loans, leases, or otherwise transfers the SERVICE;

·         Not directly or indirectly permit any third party to copy the SERVICE;

·         Removes or fails to reproduce on any permitted backup or archival copy of the SERVICE any proprietary notices (e.g., copyright and trademark notices) from the SERVICE; or

·         Infringes the intellectual property or other legal rights of third parties.

 

BISSO reserves the right to periodically modify this Agreement to reflect any updates to the SERVICE and/or SOFTWARE. SUBSCRIBER’s continued use of the SERVICE following modification to the SERVICE, SOFTWARE, and/or Agreement constitutes the agreement to be bound by the modified Terms. A copy of the most current version of the Agreement can be accessed at: http://www.firstbackup.com/agreement If SUBSCRIBER does not agree to the new terms, the SUBSCRIBER must terminate the SERVICE immediately.

 

7.       LIMITED WARRANTY AND DISCLAIMER

(a) BISSO PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE SOFTWARE. THE SOFTWARE IS PROVIDED “AS IS".

(b) BISSO AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. BISSO DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. BISSO SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. BISSO does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE. BISSO makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. BISSO further expressly disclaims any warranty or representation to Authorized Users or to any third party.

(c) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY.

(d) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BISSO, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. 

(e)  (USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

8. LIMITATION OF LIABILITY

(a)  NEITHER BISSO NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BISSO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(b) BISSO TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $100 OR THE AMOUNT PAID BY YOU FOR THE SERVICE THE MONTH THE INCIDENT OCCURRED.  

(c)  (USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

(d)  THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.

 

8.       FORCE MAJEURE

Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement or any Statement of Work (other than payment obligations) by reason of any Act of God, fire, natural disaster, accident, riot, act of government, strike or labor dispute, shortage of materials or supplies, failure of transportation or communication or of suppliers of goods or services, or any other cause beyond the reasonable control of such party. Performance times shall be considered extended for a period of time equivalent to the time lost because of such delay.

9.       GOVERNING LAW; ENTIRE AGREEMENT

This Agreement and each Statement of Work shall be governed by and construed in accordance with the laws of the State of Iowa, without regard to its conflict of laws provisions. The exclusive jurisdiction and venue for all legal actions arising out of or related to this Agreement shall be in courts of competent subject matter jurisdiction located in the Polk County, Iowa, and the parties hereby consent to the jurisdiction of such courts. This Agreement, together with any Statements of Work executed pursuant hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, proposals, understandings and representations, written or oral, with respect to the subject matter hereof. Neither this Agreement nor any Statement of Work may be modified or amended except in a writing signed by duly authorized representatives of each party. To the extent there is such a conflict between the terms and conditions of a Statement of Work and the terms and conditions of this Agreement, the terms and conditions of the Statement of Work shall govern and control unless otherwise specified in the Statement of Work. CUSTOMER AND CONSULTANT EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

10.    NOTICES

All notices, consents and approvals, including notices of address changes, required or permitted to be given by either party under this Agreement shall be in writing and shall be deemed given when delivered in person or sent by registered or certified mail or by reputable overnight commercial delivery to the address set forth on page 1; provided, however, that notices to Consultant shall be sent to the attention of its General Counsel.

11.    SEVERABILITY

It is the desire and intent of Consultant and Customer that the terms and conditions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated to be overly broad, invalid or unenforceable as written, it is the desire and intent of Consultant and Customer that the court will revise such provision as it deems necessary to make it consistent with the law and public policy of the jurisdiction and governing law and enforce the provision as so revised. In particular, if any one or more provisions contained in this Agreement shall for any reason be adjudicated to be excessively broad as to duration, geographical scope, activity or subject matter, it is the desire and intent of Consultant and Customer that the court shall modify such provisions to reduce their breadth to whatever extent and in whatever manner it deems necessary to render them reasonable and enforceable to the maximum extent compatible with applicable law. In the event that any one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be affected.

12.    WAIVER

No waiver or forbearance by either party hereto of any rights hereunder in any particular instance shall act to preclude such party from exercising those rights in any other instance.

13.    HEADINGS

The section and other headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.