Backup Barracks 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 OR SUBSCRIBING FOR ANY SERVICE OFFERED BY BACKUP BARRACKS CORP. THIS IS THE END USER SOFTWARE LICENSE AND SERVICES AGREEMENT THAT YOU ARE REQUIRED TO ACCEPT BEFORE DOWNLOADING, INSTALLING AND/OR USING BACKUP BARRACKS SOFTWARE OR ACCESSING ANY SERVICES. YOU ARE NOT PERMITTED TO DOWNLOAD AND/OR INSTALL THIS SOFTWARE PRODUCT OR ACCESS ANY 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, INSTALLING THE SOFTWARE OR OTHERWISE ACCESSING ANY SERVICE OR BY SELECTING THE “I AGREE” OPTION AND ACCESSING ANY 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 OR INSTALL THE SOFTWARE PRODUCT OR ACCESS ANY SERVICE, AND DO NOT PROCEED TO CLICK THE “ACTIVATE ACCOUNT” BUTTON. THIS AGREEMENT IS ENTERED INTO BY BACKUP BARRACKS CORP., CARRYING ON BUSINESS AS BACKUP BARRACKS (“BACKUP BARRACKS”) AND YOU AS END USER OF THE SOFTWARE PRODUCT AND/OR ANY SERVICES OFFERED BY BACKUP BARRACKS (“END USER”).

 

 

1. The Software Product and Services

The subject of this license is the BACKUP BARRACKS software product in which this license is the software product, in object code format, in which the license is embedded and/or which the END USER seeks to download and includes, without limitation any related updates provided to END USER by BACKUP BARRACKS, (collectively, the “Software Product”) and all services, including, without limitation, BACKUP BARRACKS’ online back-up service offering, BACKUP BARRACKS’ remote desktop service offering and/or BACKUP BARRACKS’ server back-up service offering offered by BACKUP BARRACKS (collectively, the “Services”). In order to make use of the Software Product and/or Services, END USER must be using a systems environment supported by BACKUP BARRACKS. 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 BACKUP BARRACKS (and/or its third party suppliers or contractors) shall be entitled to use any personal information to which BACKUP BARRACKS (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 BACKUP BARRACKS’ privacy policy which may be accessed here http://backup barracks.com/terms. END USER acknowledges that this privacy policy may be updated from time to time and END USER agrees to obtain any consent 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. An END USER is responsible for obtaining access to the Services and for any third party fees incurred in connection with obtaining such access (e.g. Internet service provider fees) and for obtaining all equipment necessary to access the Services and/or make use of the Software Product.

As part of the online registration process, BACKUP BARRACKS will collect certain registration information about END USER. All such registration information provided by or on behalf of END USER must be current, complete and accurate, and END USER is solely responsible for updating such registration information as necessary. BACKUP BARRACKS reserves the right to terminate this Agreement immediately in the event any such registration information is found to be inaccurate, incomplete or not current at any time.

 

 

2. Software License Grant; Consent to Automatic Installation of Updates

 

Upon the following terms and conditions including payment of any applicable fees:

 

(i) BACKUP BARRACKS hereby grants to END USER and END USER hereby accepts from BACKUP BARRACKS, a non-exclusive, non-transferable and non-assignable license, for END USER’s own 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 licensed by END USER where such computers are owned or leased by END USER; and

 

(ii) END USER hereby subscribes for and BACKUP BARRACKS agrees to use commercially reasonable efforts to provide, the Services. END USER acknowledges that the Services may include the automatic provisioning of updates to the Software from time to time, as determined in BACKUP BARRACKS’ sole discretion. END USER expressly consents to any and all actions taken by BACKUP BARRACKS or their third party suppliers with respect to the provision of such updates including any actions that directly affect END USER hardware or software.

 

 

3. Ownership and Intellectual Property Rights

 

The Software Product and Services are protected by copyright, patent and other intellectual property laws and the Software Product and the Services are proprietary and confidential of BACKUP BARRACKS (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 BACKUP BARRACKS and/or its third party suppliers. These rights are protected by national and other laws and international treaties.

END USER acknowledges that:

 

(i) it acquires no rights in the Software Product and Services, other than those rights expressly granted in this Agreement and

 

(ii) no rights, license or interest to any BACKUP BARRACKS trade-marks or trade names are granted hereunder.

 

 

4. License and Use 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 BACKUP BARRACKS, which consent shall be at BACKUP BARRACKS’ discretion. Any such copy which is made is subject to the provisions of this Agreement, and all titles, trade-marks, 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 Agreement, 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.

END USER acknowledges and agrees that all materials, including without limitation, information, data, software, music, sound, photographs, graphics, video, and email messages or other kinds of messages (collectively, “Content”), whether publicly posted or privately transmitted, are the sole responsibility of END USER. END USER (and not BACKUP BARRACKS) is solely responsible for all Content uploaded, posted, emailed, transmitted, shared, accessed and/or otherwise made available via the Services. BACKUP BARRACKS does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances is BACKUP BARRACKS liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of, or reliance upon any Content uploaded, posted, emailed, transmitted, shared, accessed and/or otherwise made available via the Services. END USER agrees that END USER will not use the Services to:

 

(i) upload, post, email, transmit, share, access and/or otherwise make available any Content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable or generally unlawful;

 

(ii) upload, post, email, transmit, share, access and/or otherwise make available any Content that END USER does not have a right to make available under any law or under contractual or fiduciary relationship;

 

(iii) upload, post, email, transmit or otherwise make available any Content that infringes any copyright, trade-mark, trade secret or other intellectual property or proprietary rights of any third party;

 

(iv) upload, post, email, transmit or otherwise make available any Content that otherwise contravenes or violates applicable law. BACKUP BARRACKS does not pre-screen Content. However, BACKUP BARRACKS reserves the right, in its discretion, to refuse or move any Content that is available via the Services. END USER consents to BACKUP BARRACKS accessing, preserving, and disclosing END USER’s account information and Content if required to do so by law or in the good faith belief that such access, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of this Agreement; (c) respond to claims that any Content violates the rights of third-parties; or (d) respond to END USER’s requests for customer service.

 

END USER ACKNOWLEDGES THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF THE SERVICES, INCLUDING THE TRANSMISSION OF CONTENT, MAY INVOLVE TRANSMISSIONS OVER VARIOUS PUBLIC NETWORKS WHICH ARE NOT SECURE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT THE SOLE DISCRETION AND RISK OF END USER AND END USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE INCURRED BY AN END USER (INCLUDING, WITHOUT LIMITATION, DAMAGE TO AN END USER’S COMPUTER SYSTEM OR LOSS OF DATA) THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT. BACKUP BARRACKS RESERVES THE RIGHT TO MODIFY, AMEND OR CEASE TO OFFER ANY OF THE SERVICES UPON PROVIDING END USER WITH THIRTY (30) DAYS PRIOR NOTICE, WHICH SHALL BE POSTED ON THE WEBSITE FROM WHICH THE SERVICES ARE ACCESSED BY END USER. BACKUP BARRACKS 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 THIRTY (30) DAYS AFTER SUCH NOTICE IS PROVIDED.

 

END USER agrees to indemnify and hold BACKUP BARRACKS, 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 END USER’s use of the Software Product and/or the Services or breach of this Agreement by the END USER and in connection with a claim or demand made by any third party due to or arising out of Content submitted, posted, transmitted or made available through the Services or the use of the Services by END USER. In connection with the Services provided by BACKUP BARRACKS, END USER agrees as follows: (a) only the registered users of the account may use the Software Product and/or the Services, (b) END USER is solely responsible for the Contents of END USER’s e-mail messages, attachments and stored files and BACKUP BARRACKS reserves the right to remove from its servers any Content that may expose BACKUP BARRACKS 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 Services, (f) END USER may not attempt to gain unauthorized access to the Services, 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. As part of END USER’s subscription to the Services, END USER must select a user name and choose a password for access to END USER’s account and to END USER’s designated computers. END USER agrees to carefully safeguard all of END USER’s passwords and account information. END USER is solely responsible if END USER does not maintain the confidentiality of END USER’s passwords and account information. END USER is solely responsible for any and all activity that occurs under END USER’s account. END USER agrees immediately to notify BACKUP BARRACKS of any unauthorized use of END USER’s account or any other breach of security known to END USER, including if END USER believes END USER’s password or account information has been stolen or otherwise compromised. Access to, and use of, password-protected and/or secure aspects of the Services are restricted to authorized users only. BACKUP BARRACKS is not liable for any loss incurred by END USER, resulting from another’s use of END USER’s password or account information. END USER shall not access or use someone else’s account at any time, without the permission of the account holder. BACKUP BARRACKS does not send emails asking for an END USER’s username and/or password. END USER agrees to keep all usernames and passwords confidential.

 

 

5. Payment of Fees

In consideration of the Services provided to END USER by BACKUP BARRACKS and END USER’s use of the Software Product and/or Services, END USER agrees to pay BACKUP BARRACKS by authorized credit card the then applicable fees (“Fees”), together with all applicable taxes. BACKUP BARRACKS’ pricing plan can be viewed here: www.backupbarracks.com/service. END USER has thirty (30) days from the date that any discrepancy appears in END USER’s statement or any invoice to notify BACKUP BARRACKS 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 BACKUP BARRACKS with five (5) days written notice by e-mail or letter. If END USER cancels the credit card provided to BACKUP BARRACKS or the card is otherwise terminated, END USER must immediately provide BACKUP BARRACKS with a new valid credit card number. END USER authorizes BACKUP BARRACKS, from time to time, to undertake steps to determine whether the credit card number provided to BACKUP BARRACKS is a valid credit card number. In the event that END USER does not provide BACKUP BARRACKS with a current valid credit card number with sufficient credit upon request, END USER will be in violation of this Agreement and will no longer be entitled to make use of the Service and/or the Software Product.

 

 

6. Term of Agreement

This Agreement 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 Agreement, and shall remain in effect for so long as the END USER has paid all applicable Fees for the Software Product and/or subscribes to the Services unless this Agreement is otherwise terminated. This Agreement 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, BACKUP BARRACKS may terminate this Agreement without cause by providing END USER with thirty (30) days prior notice by e-mail. In addition, BACKUP BARRACKS reserves the right, in its discretion, to disable and/or terminate an END USER’s access to the Software Product and/or Services if it is advised of an END USER violating the terms and conditions of this Agreement (including, without limitation, any allegation that any Content violates the intellectual property rights of any third party). 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. Upon the expiry or termination of this Agreement for any reason, BACKUP BARRACKS may, at its discretion, immediately purge END USER’s data from its systems, including but not limited to, account information, users, settings, and any Content that may be stored by BACKUP BARRACKS.

 

 

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. BACKUP BARRACKS AND ITS RESELLERS DO NOT WARRANT THAT THE SOFTWARE PRODUCT OR SERVICES WILL MEET THE END USER’S REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE PRODUCT OR SERVICES WILL BE UNINTERRUPTED 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 OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.

 

 

9. Limitation of Liability

END USER ACKNOWLEDGES AND AGREES THAT BACKUP BARRACKS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM BACKUP BARRACKS’ NETWORK, OTHER PORTIONS OF THE INTERNET OR OTHER ACCESS SERVICES (COLLECTIVELY “CONNECTIVITY SERVICE”). THE SERVICES AND FLOW OF DATA DEPENDS IN PART ON ACTIONS OR INACTIONS OF THIRD PARTIES AND THE PERFORMANCE OF CONNECTIVITY SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES THAN CAN IMPAIR OR DISRUPT THE SERVICES. BACKUP BARRACKS CANNOT GUARANTEE THAT SUCH EVENTS, INCLUDING BUT NOT LIMITED TO COMPUTER VIRUS, THEFT, OPERATOR ERROR OR HACKER PENETRATION, WILL NOT OCCUR. ACCORDINGLY, BACKUP BARRACKS AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. END USER ACKNOWLEDGES AND AGREES THAT END USER SHALL BE SOLELY RESPONSIBLE, AT ITS OWN EXPENSE, FOR ACQUIRING, INSTALLING AND MAINTAINING ALL NECESSARY DATA COMMUNICATIONS CIRCUITS AND CONNECTIVITY SERVICE RELATED EQUIPMENT, HARDWARE, SOFTWARE AND SERVICES.

 

BACKUP BARRACKS’ 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 RESPECT OF WHICH THE CLAIM IS MADE 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 BACKUP BARRACKS, 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 BACKUP BARRACKS 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 PROGRAM OR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES.

 

 

10. Referral Program Terms and Conditions

The BACKUP BARRACKS Referral program (the “Program”) is intended for use by END USERs who have subscribed to the online back-up Service offered by BACKUP BARRACKS to introduce END USER’s family, friends and colleagues to the online back-up Service offered by BACKUP BARRACKS. After the person or business referred by an END USER subscribes to the online back-up Service, and remains an END USER for at least 45 days, each of the referring party (“Referring Party”) and the referred party (“Referred Party”) (collectively the Referring Party and the Referred Party are sometimes referred to herein as an “END USER”) will receive a one-time credit of ten dollars ($10) (“Referral Credit”) on the next invoice BACKUP BARRACKS provides to the END USER (approximately 30 days after the trial period ends). This offer applies only when the Referred Party is a new BACKUP BARRACKS customer (i.e., has never been a business or residential customer in respect of the online back-up Service) and may not be used in conjunction with any other offer or promotion, excluding the two (2) week free trial promotion. To qualify for the Referral Credit, the Referring Party must retain the online back-up Service for at least forty five (45) days after the Referred Party’s Service is activated. If, within forty five (45) days of such activation date, the Referring Party cancels the online back-up Service, or if BACKUP BARRACKS terminates either party’s online back-up Service, this will result in the forfeiture of the Referral Credit described herein by both parties. Any unused portion of a Referral Credit will be applied to the following month’s invoice, provided, however, that if either party’s online back-up Service is cancelled or terminated at any time after the 45 day period described above, then any unused portion of the Referral Credit will be forfeited. Participation in the Program constitutes the full and unconditional agreement by each of the Referring Party and the Referred Party to the terms and conditions of this Agreement. The Program is not available to resellers, employees of BACKUP BARRACKS or their immediate family members (spouse, parents, siblings, and children). The Program is void where prohibited. BACKUP BARRACKS reserves the right to modify any of the terms and conditions set forth herein relating to the Program at any time, with or without notice. BACKUP BARRACKS reserves the right to discontinue the participation privileges of any END USER who engages in any fraudulent activity or uses the Program in a manner inconsistent with the terms and conditions of this Agreement or any applicable laws. Discontinued participation privileges may result in the loss of all accumulated Referral Credits. In addition to discontinuance of participation privileges, BACKUP BARRACKS shall have the right to take appropriate administrative and/or legal action, including criminal prosecution, as it deems necessary in its sole discretion. BACKUP BARRACKS is not responsible for any incorrect or inaccurate information supplied by an END USER while participating in the Program. All questions or disputes regarding eligibility for the Program, earning of Referral Credits, or an END USER’s compliance with the terms and conditions of this Agreement will be resolved by BACKUP BARRACKS in its sole discretion. To be eligible to receive the Credit, the Referred Party must meet all of the requirements of BACKUP BARRACKS to subscribe to the online back-up Service, must be accepted by BACKUP BARRACKS and must remain a subscriber to the online back-up Service for at least 45 days. The Credit will be applied to the Referring Party’s account after the Referred Party has been a subscriber for 1 billing period (approximately 45 days after sign-up). The Referral Credit has no cash value and may be used solely as a credit against the fees payable by the Referring Party in respect of the Referring Party’s subscription to the online back-up Service. The Referral Credit expires 12 months after it has been applied to the Referring Party’s account. To be eligible to receive the Referral Credit, the Referring Party must remain a current and compliant subscriber to the online back-up Service during this 45 day period. The Credit is not available to a Referring Party participating in any other offer, promotion, or program offered by BACKUP BARRACKS. Referral Credits may not be transferred or assigned. If you have questions regarding the Program, please contact BACKUP BARRACKS at support@backupbarracks.com. The Program does not apply to any other Services offered by BACKUP BARRACKS.

 

 

11. Additional Provisions for Beta Services

If any of the Services is identified as a beta version of such Service (“Beta Service”), the following additional provisions apply and supersede any provisions of this Agreement which contradict the provisions contained in this Section: (a) END USER acknowledges that the Beta Service is not at the level of performance and compatibility of a final, generally released product offering and may not operate properly, may contain “bugs”, and may be substantially modified by BACKUP BARRACKS prior to commercial release; (b) END USER’S license to or ability to make use of such Beta Service expires upon availability of a commercial release of that Beta Service from BACKUP BARRACKS; (c) the Beta Service may only be used for testing and evaluation purposes and may not be redistributed; and (d) END USER agrees that such Beta Service is provided “as is, where is” without warranty or condition of any kind and BACKUP BARRACKS disclaims any liability obligations to END USER or any third party of any kind with respect to such Beta Service. END USER acknowledges that BACKUP BARRACKS has not made any representations, promises or guarantees that the Beta Service will ever be announced or made available to anyone in the future. END USER will be asked to provide feedback regarding the Beta Service and END USER hereby grants to BACKUP BARRACKS a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any BACKUP BARRACKS product or service (including the Beta Service) at any time at the sole discretion of BACKUP BARRACKS. END USER ACKNOWLEDGES AND AGREES THAT END USER WILL BE OBLIGATED TO PAY FEES FOR THE SERVICES FORMING THE BETA SERVICE ONCE A COMMERCIAL RELEASE OF THE BETA SERVICE IS MADE AVAILABLE BY BACKUP BARRACKS.

 

 

12. General Provisions

(a) Survival. The limitations of liability and ownership rights of BACKUP BARRACKS 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 otherwise provided for in 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. Les parties ont convenu à ce que ce Contrat soit rédigé en anglais.

 

(f) Governing Law. This Agreement shall be governed by the laws of the Province of Ontario. The parties hereby agree to the non-exclusive jurisdiction of the courts of the Province of Ontario. 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) Force Majeure. Neither party shall be liable for any performance failure, delay in performance, or lost data under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are caused by any causes beyond that party’s reasonable control, including, without limitation, failure of suppliers, subcontractors, and carriers.

 

(i) Benefit of the Agreement. This Agreement is binding upon and shall ensure 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