ENTERPRISE
COMPUTER SOLUTIONS, INC. END USER
SOFTWARE LICENSE AND SERVICES AGREEMENT
Preamble
IMPORTANT – READ THE FOLLOWING
TERMS AND CONDITIONS CAREFULLY BEFORE
PROCEEDING WITH THE DOWNLOADING AND/OR
INSTALLATION OF THIS SOFTWARE PRODUCT.
THIS IS THE END USER SOFTWARE LICENSE
AND SERVICES AGREEMENT THAT YOU ARE
REQUIRED TO ACCEPT BEFORE INSTALLING
AND USING ENTERPRISE COMPUTER SOLUTIONS,
INC. SOFTWARE OR ACCESSING ANY RELATED
SERVICES. YOU ARE NOT PERMITTED TO
DOWNLOAD AND/OR INSTALL THIS SOFTWARE
PRODUCT OR ACCESS ANY RELATED SERVICE
UNTIL YOU HAVE AGREED TO BE BOUND
BY ALL OF THE TERMS AND CONDITIONS
OF THIS END USER SOFTWARE LICENSE
AND SERVICES AGREEMENT.
BY SELECTING THE
“I AGREE” OPTION AND SELECTING
“ACTIVATE ACCOUNT”, THEN
DOWNLOADING THE SOFTWARE PRODUCT OR
OTHERWISE ACCESSING ANY RELATED SERVICE,
YOU CONSENT TO BE BOUND BY AND ARE
A PARTY TO THIS END USER SOFTWARE
LICENSE AND SERVICES AGREEMENT. IF
YOU DO NOT AGREE WITH ALL OF THE TERMS
AND CONDITIONS OF THIS END USER SOFTWARE
LICENSE AND SERVICES AGREEMENT, DO
NOT DOWNLOAD THE SOFTWARE PRODUCT
OR ACCESS ANY RELATED SERVICE, AND
DO NOT PROCEED TO CLICK THE “ACTIVATE
ACCOUNT” BUTTON.
THIS AGREEMENT
IS ENTERED INTO BY Enterprise Computer
Solutions, Inc. ("ECS")
AND YOU AS END USER OF THE SOFTWARE
PRODUCT AND ALL RELATED SERVICES (“END
USER”).
1. The Software
Product
The subject of this license is the
Backup Proshop software product in
which this license is embedded and
any related updates provided to END
USER by ECS, including computer software
(collectively, the "Software
Product") and all related services
(the “Services”). The
Software Product does not include
bug fixes, error corrections, patches,
new releases, or any other component
not specified within this Agreement.
END USER agrees that ECS (and/or its
third party suppliers or contractors)
shall be entitled to use any personal
information to which ECS (and/or its
third party suppliers or contractors)
may have access pursuant to the transactions
contemplated by this Agreement (including,
without limitation, access which may
be provided by END USER making use
of the Software Product and the Services)
in accordance with the terms of ECS’s
privacy policy which may be accessed
at http://www.backupproshop.com/privacy.htm.
END USER acknowledges that this privacy
policy may be updated from time to
time and END USER agrees to obtain
any consents required from individuals
whose personal information may be
accessed pursuant to the transactions
contemplated by this Agreement in
connection with the uses contemplated
by this privacy policy.
2. Software License
Grant
Upon the following terms and conditions
including payment of any applicable
fees: (i) ECS hereby grants to END
USER and END USER hereby accepts from
ECS, a non-exclusive, non-transferable
and non-assignable license, for END
USER’s own personal, internal,
end-use purposes only (excluding the
commercialization of information technology
products and/or services), to install
and use the Software Product on one
or more computers where such computers
are owned or leased by END USER and
(ii) END USER hereby subscribes for
and ECS agrees to use commercially
reasonable efforts to provide, the
Services.
3. Ownership and
Intellectual Property Rights
The Software Product is protected
by copyright and the Software Product
and the Services are proprietary and
confidential of ECS (and/or its third
party suppliers). All rights, title
and interest in and to the Software
Product and Services (including associated
intellectual property rights) are
and will remain vested in ECS and/or
its third party suppliers. These rights
are protected by national and other
laws and international treaties. END
USER acknowledges that no rights,
license or interest to any ECS trade-marks
or trade names are granted hereunder.
4. License Restrictions
THE SOFTWARE PRODUCT WHICH IS THE
SUBJECT OF THIS AGREEMENT IS LICENSED
TO END USER, NOT SOLD.
END USER MAY NOT
SUBLICENSE, ASSIGN, RESELL, SHARE,
PLEDGE, RENT OR TRANSFER ANY OF ITS
RIGHTS UNDER THIS AGREEMENT IN RELATION
TO THE SOFTWARE PRODUCT OR ANY OF
THE SERVICES OR ANY PORTION THEREOF.
EXCEPT AS EXPRESSLY
PERMITTED BY COPYRIGHT LAWS, NO COPYING,
REDISTRIBUTION, DISPLAYING, PERFORMING,
REPRODUCING, LICENSING, TRANSFERRING
OR PUBLICATION OF THE SOFTWARE PRODUCT
OR ANY OF THE SERVICES' CONTENT IS
PERMITTED WITHOUT THE EXPRESS PERMISSION
OF ECS, WHICH CONSENT SHALL BE AT
ECS'S DISCRETION. ANY SUCH COPY WHICH
IS MADE IS SUBJECT TO THE PROVISIONS
OF THIS AGREEMENT, AND ALL TITLES,
TRADEMARKS, COPYRIGHT NOTICES AND
OTHER LEGENDS SHALL BE REPRODUCED
ON SUCH COPY.
END USER MAY NOT
USE OR COPY THE SOFTWARE PRODUCT,
IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY
PROVIDED FOR IN THIS LICENSE. END
USER MAY NOT MODIFY, TRANSLATE, REVERSE
ENGINEER, DECOMPILE, DISASSEMBLE OR
CREATE DERIVATIVE WORKS OF THE SOFTWARE
PRODUCT OR OTHERWISE ATTEMPT TO (A)
DEFEAT, AVOID, BY-PASS, REMOVE, DEACTIVATE
OR OTHERWISE CIRCUMVENT ANY SOFTWARE
PROTECTION MECHANISMS IN THE SOFTWARE
PRODUCT INCLUDING, WITHOUT LIMITATION,
ANY SUCH MECHANISM USED TO RESTRICT
OR CONTROL THE FUNCTIONALITY OF THE
SOFTWARE PRODUCT OR (B) DERIVE THE
SOURCE CODE OR THE UNDERLYING IDEAS,
ALGORITHMS, STRUCTURE OR ORGANIZATION
FORM OF THE SOFTWARE PRODUCT. END
USER WILL AT ALL TIMES, INCLUDING
DURING AND AFTER THE TERM OF THIS
LICENSE, KEEP THE SOFTWARE PRODUCT
AND THE CONTENT OF THE SERVICES CONFIDENTIAL.
END USER AGREES
THAT THE SOFTWARE PRODUCT WILL NOT
BE SHIPPED, TRANSFERRED OR EXPORTED
INTO ANY OTHER COUNTRY, OR USED IN
ANY MANNER PROHIBITED BY CANADIAN
OR OTHER APPLICABLE EXPORT LAWS AND
REGULATIONS. END USER AGREES TO COMPLY
WITH ALL OTHER APPLICABLE LAWS AND
REGULATIONS.
ECS RESERVES THE
RIGHT TO MODIFY, AMEND OR CEASE TO
OFFER ANY OF THE SERVICES ASSOCIATED
WITH THE SOFTWARE PRODUCT UPON PROVIDING
END USER WITH TEN (10) DAYS PRIOR
NOTICE, WHICH SHALL BE POSTED ON THE
WEBSITE FROM WHICH THE SERVICES ARE
ACCESSED BY THE END USER. ECS FURTHER
RESERVES THE RIGHT TO MODIFY THIS
AGREEMENT AT ANY TIME BY POSTING THE
AMENDED TERMS ON THE WEBSITE, WHICH
POSTING SHALL CONSTITUTE NOTICE TO
THE END USER. ALL AMENDED TERMS SHALL
BE EFFECTIVE IMMEDIATELY UPON SUCH
NOTICE.
END USER AGREES
TO INDEMNIFY AND HOLD ECS, ITS RESELLERS
AND THIRD PARTY SUPPLIERS, DIRECTORS,
OFFICERS AND EMPLOYEES, HARMLESS FROM
ALL CLAIMS, LIABILITIES, DAMAGES,
LOSSES, INCLUDING REASONABLE LEGAL
FEES AND EXPENSES, DUE TO OR ARISING
OUT OF YOUR USE OF THE SOFTWARE PRODUCT
AND THE SERVICES OR BREACH OF THIS
AGREEMENT BY THE END USER.
IN CONNECTION WITH
THE SERVICES PROVIDED ECS, END USER
AGREES AS FOLLOWS: (A) ONLY THE REGISTERED
USER OF THE ACCOUNT MAY USE THE SOFTWARE
PRODUCT AND THE SERVICES, (B) END
USER IS SOLELY RESPONSIBLE FOR THE
CONTENTS OF END USER’S E-MAIL
MESSAGES, ATTACHMENTS AND STORED FILES
AND ECS RESERVES THE RIGHT TO REMOVE
FROM ITS SERVERS ANY CONTENT THAT
MAY EXPOSE ECS TO POTENTIAL LIABILITY,
(C) END USER MAY NOT DISTRIBUTE THROUGH
THE SERVICES ANY ATTACHMENTS, DOCUMENTS
OR FILES THAT: (i) INFRINGE ON ANY
COPYRIGHT, PATENT, TRADE SECRET, TRADEMARK
OR OTHER THIRD PARTY PROPRIETARY RIGHTS;
(ii) VIOLATE ANY LAW, STATUTE, ORDINANCE
OR REGULATION; (iii) ARE DEFAMATORY
OR LIBELOUS; (iv) ARE OBSCENE; AND/OR
(v) CONTAIN VIRUSES, TROJAN HORSES,
WORMS, TIME BOMBS, OR SIMILAR HARMFUL
PROGRAMMING ROUTINES, (D) END USER
MAY NOT USE THE SOFTWARE PRODUCT OR
THE SERVICES FOR ANY UNLAWFUL PURPOSE,
(E) END USER MAY NOT USE THE SOFTWARE
PRODUCT OR SERVICES IN A MANNER THAT
MAY DAMAGE, DISABLE, OVERBURDEN OR
IMPAIR EITHER THE SERVICES OR THE
NETWORKS CONNECTED TO THE SERVICE,
(F) END USER MAY NOT ATTEMPT TO GAIN
UNAUTHORIZED ACCESS TO THE SERVICE,
INCLUDING BUT WITHOUT LIMITATION,
THROUGH HACKING OR PASSWORD MINING,
(G) END USER MAY NOT USE THE SOFTWARE
PRODUCT OR SERVICES TO COLLECT INFORMATION
ABOUT THIRD PARTIES, INCLUDING AND
WITHOUT LIMITATION, E-MAIL ADDRESSES.
5. Payment of Fees
In consideration of the Services provided
to END USER by ECS and END USER’s
use of the Software Product, END USER
agrees to pay ECS by authorized credit
card the then applicable fees ("Fees"),
together with all applicable taxes.
Currently, the applicable Fees are
available at http://www.backupproshop.com/pricing.htm.
END USER has thirty (30) days from
the date that any discrepancy appears
in END USER’s statement or any
invoice to notify ECS in order to
receive an adjustment or credit, after
which time, all Fees will be deemed
correct. END USER may cancel END USER’s
subscription to the SERVICES prior
to the renewal period by providing
ECS with five (5) days written notice
by e-mail or letter.
6. Term of License
This license shall be in effect from
the time END USER installs the Software
Product or accesses any of the Services
and accepts the terms and conditions
of this license, and shall remain
in effect for so long as the END USER
subscribes to the Services unless
this license is otherwise terminated.
This license will terminate upon the
conditions set forth in this Agreement
or if END USER fails to comply with
any term or condition of this Agreement,
including failure to pay any applicable
Fees. In addition, ECS may terminate
this Agreement without cause by providing
you with fifteen (15) days prior notice
by e-mail. END USER agrees upon expiration
or termination of this Agreement to
immediately un-install the Software
Product and destroy all copies of
the Software Product in its possession
and/or under its control.
7. Notice to U.S.
Government End Users
The Software Product is a “commercial
item” as that term is defined
at 48 C.F.R. 2.101, consisting of
“commercial computer software”
and “commercial computer software
documentation” as such terms
are used in 48 C.F.R. 12.212. Consistent
with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4, all
U.S. Government end users acquire
the Software Product with only those
rights set forth therein.
8. Disclaimer of
Warranty
THE SOFTWARE PRODUCT AND ALL SERVICES
ARE PROVIDED "AS IS" WITHOUT
ANY WARRANTY OR CONDITION OF ANY KIND,
EITHER EXPRESS OR IMPLIED. USE OF
THE SOFTWARE PRODUCT AND ALL SERVICES
IS AT END USER’S OWN RISK. ECS
AND ITS RESELLERS DO NOT WARRANT THAT
THE SOFTWARE OR SERVICES WILL MEET
THE END USER’S REQUIREMENTS
OR THAT OPERATION OF THE SOFTWARE
OR SERVICES WILL BE UNINTERRRUPTED
OR ERROR FREE OR SECURE OR ACCURATE
OR COMPLETE OR CURRENT. WITHOUT LIMITATION,
TO THE FULLEST EXTENT ALLOWABLE BY
LAW, THIS DISCLAIMER EXTENDS TO IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABLE
QUALITY OR FITNESS FOR A PARTICULAR
PURPOSE OR WARRANTIES ARISING BY STATUTE
OR OTHERWISE IN LAW OR FROM A COURSE
OF DEALING OR USAGE OF TRADE.
9. Limitation of
Liability
ECS’S AGGREGATE LIABILITY AND
THAT OF ITS RESELLERS AND THIRD PARTY
SUPPLIERS UNDER OR IN CONNECTION WITH
THIS AGREEMENT SHALL BE LIMITED TO
DIRECT MONEY DAMAGES NOT TO EXCEED
THE TOTAL OF PRIOR PAYMENTS MADE BY
END USER FOR THE SOFTWARE PRODUCT
AND SERVICES IN THE SIX MONTHS PRIOR
TO THE ACT OR OMISSION GIVING RISE
TO THE LIABILITY. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED
HEREIN, IN NO EVENT SHALL ECS, ITS
RESELLERS AND/OR ITS THIRD PARTY SUPPLIERS
BE LIABLE UNDER ANY THEORY OF CONTRACT,
TORT, STRICT LIABILITY OR OTHER LEGAL
OR EQUITABLE THEORY OR OTHERWISE FOR
ANY INDIRECT, CONSEQUENTIAL, SPECIAL
OR INCIDENTAL DAMAGES, EVEN IF ECS
HAS BEEN ADVISED OF THE POSSIBILITY
THEREOF INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, LOST BUSINESS REVENUE,
OTHER ECONOMIC LOSS OR ANY LOSS OF
DATA ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SOFTWARE PRODUCT
OR THE SERVICES OR THE COST OF PROCURING
SUBSTITUTE GOODS OR SERVICES.
10. General Provisions
(a) Survival. The limitations of liability
and ownership rights of ECS and its
third party suppliers contained herein
and END USER’s confidentiality
obligations and other obligations
following termination of this Agreement
shall survive the termination of this
Agreement for any reason.
(b) Amendment.
Except as provided in section 4 of
this Agreement, no amendments or modifications
may be made to this Agreement except
in writing signed by both parties.
(c) Severability.
If one or more provisions of this
Agreement are found to be invalid
or unenforceable, this Agreement shall
not be rendered inoperative, rather
the remaining provisions shall continue
in full force and effect.
(d) Conflicting
Terms. This Agreement constitutes
the entire agreement between the parties
with respect to the subject matter
of this Agreement and supersedes all
prior communications.
(e) Language. The
parties agree that this Agreement
be drafted in English.
(f) Governing Law.
This Agreement shall be governed by
the laws of the State of Michigan.
The parties hereby agree to the non-exclusive
jurisdiction of the courts of the
State of Michigan. The parties expressly
disclaim the application of the United
Nations Convention on Contracts for
the International Sale of Goods and
any state Uniform Computer Information
Transactions Act or similar federal,
provincial or state laws or regulations.
(g) Headings. The
section headings used herein are for
convenience of reference only and
do not form part of this Agreement,
and no construction or inference shall
be derived therefrom.
(h) Benefit of
the Agreement. This Agreement is binding
upon and shall enure to the benefit
of both parties and their respective
successors, heirs, executors, administrators,
personal representatives and permitted
assigns.
END OF END
USER SOFTWARE LICENSE AND SERVICES
AGREEMENT
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