USE OF THIS Service (the “Service”) consists of the right of aSubscriber of the Service (“Subscriber”) to electronically transmitand store computer data using either a private data communications network, orthe Internet into a location maintained by EOS, Inc. (“EOS”) and toretrieve said data should they be required. The Service is made availableby EOS to Subscriber during the period Subscriber maintains a paid subscriptionto the Service. Subscriber must be a currently licensed user of EOS’s softwarefor Services where software is required to provision access.
These terms and any additional Operating Rules published by EOS from timeto time constitute the entire and only agreement (collectively, the”Agreement”) between EOS and Subscriber (including Subscriber’sdesignated users) with respect to the Service and supersede all othercommunications and agreements with regard to the subject matter hereof. Uponnotice published over the Service, EOS may modify this Agreement, the OperatingRules or prices, and may discontinue or revise any or all other aspects of theService at its sole discretion and without advance notice. Unless otherwiseagreed, Subscriber’s right to use the Service or to designate users is nottransferable and is subject to any limits established by EOS.
Subscriber shall pay in advance any registration or service fees andother charges incurred by Subscriber or Subscriber’s designated users at therates in effect for the billing period in which those charges areincurred. For situations where credit card payment is utilized, Subscribershall maintain a current authorization for EOS to debit Subscriber’s creditcard account for such amounts. In addition, Subscriber shall provide EOSa current street address and Internet e-mail address for future communicationsand shall notify EOS of any change of address. Subscriber shall pay allapplicable taxes related to use of the Service by Subscriber or Subscriber’sdesignated users. For situations where the Subscriber’s credit cardissuing financial institution has been notified of a payment dispute, saidSubscriber agrees that proof of Service usage by Subscriber constitutesSubscriber authorization to submit payment request to Credit Card issuing financial institution. EOS may, in addition, at its sole discretion andwithout notice to the Subscriber, (a) suspend its performance under thi sAgreement and deny Subscriber’s and Subscriber’s designated users’ access toand use of the Service until Subscriber is back in good standing, or (b)terminate this Agreement and Subscriber’s and Subscriber’s designated users’access to and the use of the Service. Further, EOS may cancel the Service to Subscriber without cause upon thirty (30) days prior written notice. Subscriber must provide EOS with written notice of Subscriber’s intent to terminate use of the Service. At the time of cancellation, the Subscriber’s access to any of Subscriber’s data stored by the Service may be permanently terminated. EOS will not provide a refund for any unused portionof the Services paid in advance by Subscriber.
No bailment or similar obligation is created between Subscriber (and/orSubscriber’s designated users) and EOS with respect to Subscriber’s storeddata. Subscriber is solely responsible for maintaining theconfidentiality of Passwords, including restricting the use of the Password bySubscriber’s designated users. Subscriber shall be responsible for all use ofthe Service accessed through Subscriber’s Password. EOS SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO SUBSCRIBER, SUBSCRIBER’S DESIGNATED USERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE CONTENTS OF FILES STORED ON THE SERVICE. EOS IS NOT RESPONSIBLE FOR PROVIDING SUBSCRIBER WITH PASSWORDS IN THE EVENT OF A FORGOTTEN PASSWORD. WITHOUT THE CORRECT PASSWORD, SUBSCRIBER’S DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE.
Subscriber shall not use the Service for storage, possession or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law, including without limitation, stolen materials, obscene materials or child pornography. SUBSCRIBER’S BACKUPFILES MAINTAINED BY EOS ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT SUBSCRIBER’S CONSENT UPON PRESENTATION TO SUBSCRIBER OR EOS OF A SEARCH WARRANT OR SUBPOENA.
Subscriber agrees to indemnify EOS against liability for use ofSubscriber’s account which liability is a direct result of Subscriber’s misuseor negligent use of its account(s).
EOS may make copies of all files stored as part of the back up andrecovery of servers utilized in connection with some of the Services. EOSis not obligated to archive such copies and will utilize th em only for backuppurposes. They will not be accessible to Subscriber.
Subscriber is responsible for and must provide all telephone and otherequipment and services necessary to access the Service. Subscriber shouldmaintain a primary electronic file of all materials stored in the Service.Subscriber should not utilize the service as a substitute for primaryelectronic file maintenance.
SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. NEITHER EOS NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR EOSOR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS ORIMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NEITHER EOS NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT WILL EOS’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE FORTHE TWELVE MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.
The provisions of paragraphs 4, 6, 7, and 9 are for the benefit of Subscriber and its respective Suppliers, Licensors, Employees, and Agents; andeach shall have the right to assert and enforce such provisions directly on its own behalf.
This agreement is, and shall be governed by and construed in accordance with the law of the State of Illinois applicable to agreements made andperformed in Illinois.
Notwithstanding any acknowledgment of a Subscriber purchase order by EOS,any provision or condition in any purchase order, voucher, letter or other memorandum of the Subscriber which is in any way inconsistent with, or adds to, the provisions of this agreement is null and void. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. The provisions of paragraph 9 and 12 and all obligations of and restrictions on Subscriber and its designated users shall survive any termination of this Agreement.
EOS,INC. ONLINE BACKUP SOFTWARE LICENSE AGREEMENT
NOTE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BEFORE COMPLETING THE INSTALLATION OR USING THE SOFTWARE
INSTALLING AND USING THE SOFTWARE ACCOMPANYING THIS LICENSE INDICATES THE ACCEPTANCE BY YOU AND/OR YOUR COMPANY (COLLECTIVELY THE “USER”) OFTHESETERMS AND CONDITIONS. READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO INSTALLING OR USING THE SOFTWARE. IF THE USER DOES NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE. PLEASE NOTE THAT THE USER MAY NOT USE, COPY, MODIFY OR TRANSFER THE PROGRAM OR DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
LICENSE This software program (the “Program”) and the accompanying on-line read-me and help files (the “Documentation”) are licensed, not sold, to the User by EOS, Inc. (“EOS”) or its authorized Distributor. The term “Program” shall also include any updates of the Program licensed to the User by EOS or its authorized Distributor. Subject to the terms of this agreement, the User has a non-exclusive and non transferable right to use the Program and Documentation for the sole purpose of accessing EOS’s data protection services (“Services”) and not for resale or rental or the like. The User may use this Program on any computer for connecting to a legally licensed version of EOS’s software or service, both of which must be located in the United States and its territories or any other country to which this Program is legally exported. The User agrees to use your best efforts to prevent and protect the contents of the Program and Documentation from unauthorized disclosure or use. EOS and its licensors reserve all rights not expressly granted to the User. EOS’s licensors are the intended third party beneficiaries of this agreement and have the express right to rely upon and directly enforce the terms set forth herein.
LIMITATION ON USE User may not modify, network, rent, lend, loan, lease,sell or otherwise transfer or distribute the Program or Documentation, orcopies of either to others. User may not modify, translate or create derivative works based upon the Program or the Documentation in whole or in part. User may not reverse assemble, reverse compile or otherwise attempt to derive the source code from the Program. User may not release the results of any performance or functional evaluation of any Program to any third party without prior written approval of EOS for each such release. User may electronically transmit the Program from one computer to another or over a network however it will remain the responsibility of the receiving person to individually accept the terms of this Software Licensing Agreement.
BACKUP AND TRANSFER User may make up to five (5) copies of the Program, solely for backup purposes, so long as User includes EOS’s copyright notice and any proprietary legends. User may not sublicense, assign, delegate, rent,lease, time-share or otherwise transfer this license or any of the related rights or obligations for any reason. Any attempt to make any such sublicense, assignment, delegation or other transfer by the User shall be void.
COPYRIGHT The Program and related Documentation are copyrighted by EOSand/or its licensors. User may not copy the Program or Documentation except to load the Program into a computer as part of executing the Program, or to provide the single backup copy permitted by this license. User may make one copy of the Documentation and print one copy of any on-line documentation or other materials provided to User in electronic form. Any and all othercopies of the Program and Documentation made by User are in violation of this license.
OWNERSHIP EOS and/or its licensors retain all right, title and interest in and to the Documentation and all copies and the Program at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. User owns only the medium on which the Program is recorded.
TERM AND TERMINATION This license is effective until terminated. User may terminate this license at any time by destroying all copies of the Program and Documentation. This license automatically terminates if the User fails to comply with its terms and conditions. User agrees that,upon such termination, User will destroy (or permanently erase) all copies of the Program and Documentation.
DISCLAIMER OF WARRANTY EOSAND ITS LICENSORS AND AUTHORIZED DISTRIBUTORS PROVIDE THE PROGRAM AND THE DOCUMENTATION TO USER “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT OF ANY INTELLECTUAL PROPERT YRIGHT, OR FITNESS FOR A PARTICULAR PURPOSE. EOS does not warrant that the Program is error-free, nor that its operation will be uninterrupted, nor thatany or all defects will be corrected. Should the Program prove defective, User and not EOS, or its authorized distributor and its licensors, assumes the entire cost of any service and repair. NO ORAL OR WRITTEN INFORMATION ORADVICE GIVEN BY EOS OR A EOS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THESCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
Some jurisdictions do not allow the exclusion of implied warranties, sothe above exclusion may not apply to User.
LIMITATION OF REMEDIES IN NO EVENT WILL EOS OR ITS DISTRIBUTORS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF USER USE OR INABILITY TO USE THE PROGRAM INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM, EVEN IF EOS, ITS LICENSORS OR AN AUTHORIZED EOS DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST OR THROUGH USER BY ANY OTHER PARTY.
Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to the User. In no event shall EOS’s or its licensors’ or distributor’s total liability to User for all damages, losses, and causes of action (whether incontract, tort (including negligence) or otherwise) exceed the amount paid by your company for the Program.
This license will be governed by the laws of the State of Illinois as applied to transactions taking place wholly within Illinois between Illinois residents. If for any reason a court of competent jurisdiction finds any provision of this License or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible soas to effect the intent of the parties, and the remainder of this License shall continue in full force and effect.
EXPORT CONTROLS The Program and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any 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 Denial Orders; or in any other situation prohibited by U.S. law or regulation. In addition, due to the fact that it contains some encryption technology, it may violate the law of certain jurisdictions to either import, download or use the Programs. By downloading or using the Program, the User is agreeing to the foregoing and User represents and warrants that User is not located in, under the control of, or a national or resident of any such country or on any such list.
U.S. GOVERNMENT END USERS The Program is a “commercial item,”as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of”commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept.1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through227.7202-4 (June 1995), and the corresponding regulations for Department of Defense agencies and NASA, all U.S. Government End Users acquire the Program with only those rights set forth herein.. The manufacturer is EOS, Inc.,6900 Preston Dr., Springfield, IL 62711.
COMPLETE AGREEMENT This License constitutes the entire agreement between the parties with respect to the use of the Program and the related Documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of EOS.