Spare Backup End User Terms and Conditions, Entire Agreement: Welcome to Spare Backup© and Spare Switch© data archiving service and software ("Service" or "Services"). The Service provided by ("SBI") Spare Backup, Inc. and/or its subsidiaries and affiliates and the use of the SBI website (the “Website”) and the Services are governed by these Terms and Conditions (the "Terms and Conditions"). By accessing or using the Services or the Website, you ("User" or "You") agree that: (1) You have read and familiarized yourself with the Terms and Conditions; (2) You understand the Terms and Conditions; (3) You are bound by the Terms and Conditions in your use of the Services and the Website.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT USE THE SERVICES OR THE WEBSITE.
YOUR USE OF THE SERVICES AND THE WEBSITE CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO COMPLY WITH THESE TERMS AND CONDITIONS.
The Terms and Conditions constitute the entire agreement (the "Agreement") between SBI and User regarding its subject matter which supersedes and replaces any and all prior or contemporaneous agreements between the parties regarding such subject matter.
Changes to Services, Website and Terms and Conditions: User acknowledges and agrees that SBI, at its sole discretion, may change, modify, amend, suspend or discontinue any aspect of the Services, including its pricing or the Website, at any time without notice and without liability to User or to any third party. SBI reserves the right to impose limits on certain features of the Services or the Website, including limits on excessive use of storage capacity, at any time, without notice and without liability to User or to any third party. Further, User acknowledges and agrees that SBI may amend any or all of the Terms and Conditions (including fees and rules) applicable to its Service at any time, at SBI's sole discretion. Any amendment of the Terms and Conditions will be reflected on the Website and applicable to all current Users at the time it is posted, who agree to be bound thereby. Users are expected to review the Terms and Conditions posted on the Website periodically to obtain notice of any changes. Continued use of the Services and the Website constitutes acceptance of SBI’s then-current Terms and Conditions, including any amendments thereto.
The Terms and Conditions were last revised on January 05, 2009.
Registration and Eligibility: The Services and the Website are only available to persons with the legal capacity to enter into this Agreement. SBI may, at its sole and absolute discretion, refuse to accept a person's (or entity's) registration, and may, at any time after accepting registration, refuse to permit a person's (or entity's) continuing use of the Services and the Website for any reason or no reason at all.
Password and Security: After you register to use the Services or the Website, you will be prompted to select a User name and a User password. Then, the installation program will generate a unique Data Encryption Key number, also known as a Spare Key, for your use in securing your stored data. For your security, SBI will send a copy of your Data Encryption Key to an Escrow Company (the "Key Manager"). You must have the Data Encryption Key in order to retrieve your information and data stored with SBI. User is solely responsible for maintaining the confidentiality of its User name, User password and Data Encryption Key and agrees to use the Services and the Website at User's sole risk and responsibility. To retrieve a lost User Name, Password or Data Encryption Key number, please see the FAQ’s posted on the SBI Website at www.sparebackup.com. User agrees that it shall immediately notify SBI in writing or by electronic mail of any unauthorized use of its User name, User password or Data Encryption Key. Further, User acknowledges that SBI will not maintain copies of User's Data Encryption Key and that the Key Manager is not affiliated in any way with SBI. As such, User acknowledges and agrees that SBI will have no liability or responsibility whatsoever for any damages or losses caused or alleged to have been caused by the Key Manager. When utilizing Spare Remote Desktop Support Services, you agree to accept the technician(s) accessibility to your computer, if needed and as directed.
User Information: User will provide information to SBI during the registration process (the "User Information"). User represents and warrants; (1) that all User Information is accurate and complete at the time of registration; (2) that User information will be continuously updated such that the User Information shall at all times be current, accurate and complete.
Privacy Statement: The terms of the SBI Privacy Statement, as it may be amended from time to time in SBI's sole discretion, are incorporated by reference into these Terms and Conditions. User is encouraged periodically to review the SBI Privacy Statement posted on the Website at www.sparebackup.com.
Software License Grant: In order to use SBI Services, you will be required to download certain enabling software, which may include certain third party software (the "Software"). SBI grants to you a perpetual (subject to the section entitled "Termination" below and these Terms and Conditions), nonexclusive, non-transferable license to install and use the Software solely for your use of the SBI Services. In addition, you agree to comply with any applicable third party's license terms with respect to any required third party software. The SBI Software may only be reproduced, installed and used on the number of computers and clients for which you are licensed and paid, as set forth in these Terms and Conditions. You may make one (1) copy of the Software for backup purposes; otherwise, you may not reproduce any part of the Software. You shall not: (1) cause or permit any reverse engineering, decompilation, modification, adaptation, translation or disassembly of the Software, or create any derivative works based on the Software or the Services; (2) sell, rent, lease, timeshare, lend, sublicense, distribute, assign or otherwise transfer any rights in the Software or under this Agreement without SBI's prior written consent; or (3) disclose results of any benchmark tests of any Software to any third party without SBI's prior written consent.
Service Fees: SBI will provide the Services free of charge during the initial trial period. After the expiration of that trial period, in some instances, you authorize SBI to bill your credit card automatically for use of the Services at the published rate applicable to the subscription plan you order, plus a .50 cent processing fee per transaction. Visit www.sparebackup.com for more information about the Services, subscription plans and pricing information.
Non-Commercial Use: If you choose a plan requiring non-commercial use of the service, you may not resell, wholesale, sublease or otherwise use the service to generate revenue from SBI’s backup and restore service, without the prior written consent of SBI. SBI will periodically review non-commercial use accounts containing unusually high number of files or storage capacity (typically over 50GB) to check for commercial use of the SBI service. SBI will apply service fees for commercial use or for users who utilize an unusually high-volume of storage capacity over 50GB. Service fees are applied in linear 25GB increments at a rate of $13.98 per month. These fees are applied once you have exceeded 50GB, 75GB, 100GB etc.
Monthly Plan: If you choose a monthly plan, you acknowledge that your subscription and fees are collected on a monthly basis in advance. Your subscription will automatically be renewed at the current monthly pricing plan and your credit card will be billed by SBI in advance for the next month of service unless another plan is selected or you cancel your subscription prior to the beginning of the next billing cycle. In the event that you cancel or terminate the Services, anytime after subscribing, SBI at its own discretion will determine if a refund is provided. Refunds are limited to the cost of one month’s service. SBI will periodically review high number of files or storage capacity (typically over 50GB). SBI will apply service fees for commercial use or for users who utilize an unusually high-volume of storage capacity over 50GB. Service fees are applied in linear 25GB increments at a rate of $13.98 per month. These fees are applied once you have exceeded 50GB, 75GB, 100GB etc.
Annual Plan: If you choose an annual plan, you acknowledge that your subscription covers a twelve (12) month term in which SBI will charge your credit card for the full amount of the discounted annual plan. At the end of your term, your subscription will automatically be renewed for another twelve (12) month term at the then-current annual pricing plan, and your credit card will be charged by SBI for the new twelve (12) month term unless another plan is selected or you cancel your subscription prior to the beginning of the next billing cycle. In the event that you cancel or terminate the Services anytime during a twelve (12) month term, you acknowledge and agree that any remaining balance will be forfeited and no refund will be provided. However, if you decide to upgrade to a more expensive subscription plan during the term of your annual subscription period, SBI will give you a credit toward your new plan for any prepaid fees from your current plan. SBI will periodically review high number of files or storage capacity (typically over 50GB). SBI will apply service fees for commercial use or for users who utilize an unusually high-volume of storage capacity over 50GB. Service fees are applied in linear 25GB increments at a rate of $13.98 per Month. These fees are applied once you have exceeded 50GB, 75GB, 100GB etc.
Termination: SBI expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Website by any person or entity, at the sole discretion of SBI, for any reason or no reason at all, and without prior notice. You may terminate the Services at any time with or without cause by giving notice of such termination to SBI. For your security, requests to terminate accounts MUST originate from the registered email account at Spare Backup addressed to help@sparebackup.com. Under no circumstances will a cancellation request received via the phone or chat be accepted. If you terminate in the middle of your subscription term, SBI will not be required to refund the pro rata difference in the amount of service paid for and used. If your credit card is declined for any reason, you commit fraud or engage in any other dishonest conduct, or if you dispute or refuse to pay a SBI charge for any reason, such matters will be considered a material breach of these Terms and Conditions, and SBI may terminate your account immediately, without notice or liability to you.
Promotional Plans: If you subscribe for a promotional plan you acknowledge that your subscription and fees are on based on the current promotional plan you have selected. Your subscription will automatically be renewed at the current monthly pricing plan, not at the promotional rate, and your credit card will be billed by SBI for the next month of service unless another plan is selected or you cancel your subscription prior to the beginning of the next billing cycle. In the event that SBI is forced to collect any unpaid amounts owed to SBI, you agree to pay all costs of collection including, but not limited to, attorney's fees.
Credit Card Charges & Authorization: Depending on the subscription plan you have chosen, you authorize a recurring monthly or annual charge to your credit card in exchange for your use of the Services, based on SBI's then current fee schedule for the Services, which may be amended from time to time in SBI's sole discretion. If your use of the Services exceeds the limits of your chosen service plan in any given period, you will be upgraded to the next applicable service level and your account will be charged accordingly. Unless the Services are terminated by User or SBI as set forth in these Terms and Conditions, when your subscription is automatically renewed for the next service period, any applicable fee changes will be applied to your account for that next period.
Software Limited Warranty & Warranty Disclaimers: SBI WARRANTS FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE YOU DOWNLOAD THE SOFTWARE FROM THE WEB SITE, THAT THE SOFTWARE, IF USED IN ACCORDANCE WITH THESE TERMS AND CONDITIONS, WILL BE FREE OF DEFECTS AND WILL PERFORM SUBSTANTIALLY THE FUNCTIONS DESCRIBED HEREIN EXCEPT, AS SET FORTH ABOVE, SBI DOES NOT WARRANT THAT THE SOFTWARE WILL WORK IN COMBINATION WITH OTHER PRODUCTS USED BY YOU, THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE OR THE WEB SITE WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE, OR THAT ALL SOFTWARE OR WEB SITE ERRORS WILL BE CORRECTED. If you report a Software error which represents a failure of this warranty, SBI will, at its option: (1) correct or provide a reasonable workaround for the error; (2) provide a replacement of the Software which complies with the warranty; or (3) upon return of the Software to SBI, refund the subscription fees you prepaid.
EXCEPT FOR THE FOREGOING LIMITED WARRANTY, SBI MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. The limited warranties in this section shall not apply to any defects which are caused by (1) modifications of the Software made by any party other than SBI; (2) a failure of your hardware or other software to function normally in conjunction with the Software where such failure is not directly caused by the Software; or (3) your failure to use the Software according to SBI's specifications and these Terms. The remedies set forth in this section are your sole and exclusive remedies, and SBI's sole and exclusive liability, for any breach of the limited warranties provided in these Terms and Conditions.
Some states, countries or jurisdictions do not allow the exclusion of implied warranties or limitations on the length of an implied warranty, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to thirty (30) days. This warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdiction to jurisdiction. For further warranty information, contact SBI at sales@sparebackup.com.
Software Upgrades: Upon payment by you of any applicable fees, and as long as your account remains current and you continue to pay for the Services, SBI will provide you access to new releases, enhancements, or updates to the Software, in accordance with these Terms and Conditions.
Security of Stored Information: SBI will use reasonable efforts to prevent the unauthorized disclosure or destruction of your stored information and data; however, no archival or security system is either impenetrable or infallible. Except in extraordinary circumstances, or where legally required to do so, SBI will not seek to decrypt your data, and will make reasonable efforts to preserve your data in the same format in which it was received from you. Notwithstanding the foregoing, SBI does routinely collect and analyze metadata regarding User files designated for archival using the Service, including, without limitation, header information, checksum quantities, file size, file type, and archival dates. This information is used by SBI to gauge service levels and application performance, and, in some instances, for data recovery purposes. SBI will not, however, be responsible for any matter beyond its reasonable control, including, without limitation, unauthorized access to your information or data and/or functions provided or performed by third parties. In the event that SBI is served a subpoena or is otherwise legally compelled to provide access to your stored information, SBI will use reasonable efforts to provide you with notice of the same (as provided below) as soon as reasonably practical to enable you to take any action you deem necessary to prevent such access, all at your sole expense and without SBI's cooperation or assistance.
User Obligations Regarding Stored Information: You are solely responsible for the content of all data that you store or retrieve through SBI’s Services. SBI normally does not review, inspect, edit or monitor any content, data, files, stored by you or any other user of the Services and does not maintain a copy of your Data Encryption Key number. As a condition of using the Services, you represent and warrant (a) that you have sufficient rights to the content of all data and files stored by you on SBI's servers, (b) that such content does not include any illegal or improper items, (c) that such content complies in all respects with these Terms and Conditions, and (d) that your use of the Services and the Website do not infringe or violate any third party's copyright, patent, trademark, trade secret, license or other proprietary rights. Your use of the Services is subject to all applicable local, state, national and international laws and regulations. You agree not to use the Service for any illegal purposes, not to use the Service to store, retrieve, transmit or view any illegal pictures, files or information, or any material that encourages illegal conduct. You further agree not to use the Services to distribute digital content to others, or to disseminate digital content for commercial purposes.
You also agree (a) to ensure that your computer hardware and software are sufficient to enable use of the Services, and (b) to designate manually any data and files you wished to be stored on SBI's servers, including but not limited to any "unique" applications and data. You acknowledge that, by default, SBI only backs up data from certain popular installed applications on typical operating systems, and that it is the User's responsibility to review and modify the files and programs selected for backup. You further acknowledge that SBI may not detect all of your important and unique data, and you agree, therefore, to confirm manually all backup requests. For questions regarding storage and backup limitations, please see our FAQ’s section, posted on the SBI Website at www.sparebackup.com.
Limitations on Use of Services: You may not use the SBI Services or the Website for any illegal or improper purpose. SBI is NOT a service for storing and disseminating large amounts of data to other recipients, it is simply an online storage and backup service for files and data designated by you. SBI may use automated procedures to detect unacceptable or suspicious levels of usage and may immediately disable offending User accounts, and the process of detection may vary from time to time, based on the misuse detected. SBI is not responsible for any business interruptions that may be caused due to this process.
User Conduct: User is solely responsible for all user conduct and for the content of all information stored or retrieved under its User name and password. User represents, warrants and covenants that its use of the SBI Software, Services and the Website shall not: (1) violate any applicable local, state, national or international law, statute, ordinance, rule or regulation; (2) that User will not export the Software, Services and/or any User information without the appropriate United States export license or other export authorization. (The Software and Services are subject to U.S. export controls, including the Export Administration Regulations (“EAR”) (15 C.F.R. § 730 et. seq), which prohibit the Software from being downloaded or otherwise exported (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria (or any other country which may be listed at the time in “Country Group E” of the EAR) or any other country to which the United States has imposed an embargo or other economic sanctions; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Denied Persons List. By restoring or using the Software, you are agreeing to the foregoing provisions and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list); (3) interfere with or disrupt computer networks connected to the Service or the Website, including but not limited to storing any information which contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (4) impersonate any other person or entity, or make any misrepresentation as to User's employment by or affiliation with any other person or entity; (5) forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information; (6) upload, post, transmit, publish, or distribute any material or information for which User does not have all necessary rights and licenses; (7) upload, post, transmit, publish, or distribute any material which infringes, violates, breaches or otherwise contravenes the rights of any third party, including any copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (8) interfere with or disrupt the use of the Services or the Website by any other User, nor "stalk", threaten, or in any manner harass another User; (9) upload, post, transmit, publish, or distribute any unauthorized or unsolicited advertising, solicitations, offers for the sale of services, unsolicited communications, or offers for any "investment opportunities"; (10) upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Services, the Website, or that of other computer systems; (11) use the Services or the Website in such a manner as to gain unauthorized entry or access to the computer systems of others; (12) upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law; (13) upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable in any manner whatsoever; or (14) reproduce, copy, modify, sell, distribute or otherwise exploit for any commercial purposes the Services or the Website, or any component thereof (including, but not limited to any materials or information accessible through the Website).
Improper or Impermissible Use: If SBI suspects that an account is being used for storage or distribution of any illegal or improper material, such as copyrighted or illicit content, or for some other improper or impermissible purpose, then SBI may take any steps it deems necessary to protect the integrity of its Services and business. Users notified of such suspicions must grant SBI access to the data in their accounts, or, at its sole discretion. SBI, however, is not required to notify Users of suspicious activity, and may seek to obtain access to suspicious data without further notice to or consent from the User. If SBI suspects for any reason whatsoever that a User has stored data on SBI’s servers that is either illegal, in violation of these Terms and Conditions, in violation of the rights of any third party, or otherwise reasonably objectionable, then SBI may, at its sole discretion: (1) notify appropriate authorities; (2) refuse or disable User access to the Service; (3) remove or delete User data, in whole or in part, from SBI’s servers; (4) terminate the User’s account; or (5) take any other action with respect to the User's data or account that SBI, in its sole discretion, deems reasonably necessary. SBI may at its sole discretion take such protective measures without further notice to or consent from the User.
Termination: SBI expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Website by any person or entity, at the sole discretion of SBI, for any reason or no reason at all, and without prior notice. You may terminate the Services at any time with or without cause by giving notice of such termination to SBI. For your security, requests to terminate accounts MUST originate from the registered email account at Spare Backup addressed to help@sparebackup.com. Under no circumstances will a cancellation request received via the phone or chat be accepted. If you terminate in the middle of your subscription term, SBI will not be required to refund the pro rata difference in the amount of service paid for and used. If your credit card is declined for any reason, you commit fraud or engage in any other dishonest conduct, or if you dispute or refuse to pay a SBI charge for any reason, such matters will be considered a material breach of these Terms and Conditions, and SBI may terminate your account immediately, without notice or liability to you.
The Spare Backup client has been designed to automatically connect to the Spare Backup servers periodically, if SBI does not detect a connection between the Spare Backup client and the Spare Backup Servers within a period of 60 days SBI will consider the account abandoned and reserves the right to suspend and then terminate the account without notice or liability.
Disposition of Stored Information Post-Termination: You understand that all data stored by SBI on your behalf under this Agreement shall be deleted 7 (seven) calendar days from the date the Agreement is terminated (the "Termination Period"), without further consent from or notice to you (unless deleted earlier for improper or impermissible use). Prior to the last day of such Termination Period, you should endeavor to remove all of your stored files and data from SBI’s servers and/or to cure any breach of these Terms and Conditions, in which case SBI may reinstate your account in its sole discretion. SBI may destroy any of your stored data and files that are not removed from SBI’s servers within the Termination Period and/or SBI may limit or preclude your ability to retrieve or restore data and files stored on SBI’s servers until you comply with these Terms and Conditions and bring your account current, all in SBI's sole and absolute discretion. YOU ACKNOWLEDGE AND UNDERSTAND THAT SBI RESERVES THE RIGHT TO DESTROY ALL OF A USER'S DATA AND FILES IMMEDIATELY ON THE EXPIRATION OF THE TERMINATION PERIOD WITHOUT ANY LIABILITY WHATSOEVER. By using the Software you are agreeing to release SBI from any and all liability, claims and damages due to lost or stolen data whether or not you request a data copy.
Links to Third Parties: The Services and the Website may provide links to the Websites or services of others ("Third-Party Sites"). Links to such Third-Party Sites do not constitute an endorsement by SBI of such Third-Party Sites, or the products, content, materials or information presented or made available by such Third-Party Sites. User acknowledges and agrees that SBI is not responsible for any damages or losses caused or alleged to have been caused by the use of any Third-Party Sites, or from the products, content, material, services or information presented by or made available through such Third-Party Sites.
Downloading Information/Material: User hereby releases SBI, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns from any and all actual or alleged damages which may result from User downloading any information or materials from the Website. Choice of Law; Consent to Jurisdiction. This Agreement, and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of California, without regard for conflict of laws provisions. User expressly consents to personal and exclusive jurisdiction in the courts of the State of California located in Riverside County. The United Nations Convention on Contracts for the International Sale of Goods, and any successor treaties, will not govern this Agreement.
Indemnification: By using the Website and/or the Services you agree to defend, indemnify, and hold harmless SBI, its licensors and their respective officers, directors, employees, contractors and agents from all liabilities, damages, losses, costs, claims, and expenses, including attorney's fees, that arise from: (1) any content transmitted by you or any user of your account; or (2) any use or misuse of the Services or the Website by you or any user of your account. SBI reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate with SBI in any reasonable way, including asserting any available defenses.
International Use: Recognizing the global nature of the Internet, SBI makes no representation that the Services or the materials on the Website are appropriate or available for use in locations outside the United States Austria, Australia. Belgium, Canada, Cyprus, Czech Republic, Estonia, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Netherlands, New Zealand, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom , and accessing such materials from or distributing such materials to territories where their content is illegal is strictly prohibited. Specifically, you agree to comply with all applicable laws regarding the transmission of software and technology (e.g., technical data) exported from the United States. Those who choose to access the Website do so at their own initiative and are responsible for compliance with local laws. You may not remove, transmit, download or otherwise export from the United States or countries listed above, or allow the export or re-export of any software or technology owned by SBI or its licensors in violation of any restrictions, laws or regulations of the United States Department of Commerce Bureau of Industry and Security, the United States Department of Treasury Office of Foreign Assets Control or any other United States or foreign agency or authority. As defined in EAR Section 2.101, all software and documentation licensed in connection with the Services are "commercial items" and according to EAR Section 252.227-7041(a) (1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Any use, duplication, or disclosure of such software or documentation by the Government is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Technical Data and Computer Software clause of EARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as amended and as applicable, or any successor regulations thereto. Manufacturer is SBI, 72757 Fred Waring Drive, Palm Desert , California 92260.
Releases: User agrees to release SBI, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (the "Released Parties"), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys' fees, which User may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute. User waives its rights under Section 1542 of the California Civil Code, and any similar law of any applicable jurisdiction, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." User agrees that no joint venture, partnership, employment, or other agency relationship exists between User and SBI as a result of these Terms and Conditions or its use of the Services or the Website.
Limitation of Liability: IN NO EVENT WILL SBI, ITS RESELLERS, DISTRIBUTORS, AGENTS OR LICENSORS BE LIABLE FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, WHICH EXCEEDS THE AMOUNTS PAID BY USER TO SBI, IF ANY, FOR THE SERVICES FOR THE TWELVE MONTH PERIOD (IF PAYING ANNUALLY) OR THE ONE MONTH PERIOD (IF PAYING MONTHLY) PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM. IN NO EVENT WILL SBI NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSSES RELATED TO BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR LOSS OF PROFITS ARISING OUT OF USER'S USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICES, OR OUT OF ANY BREACH OF WARRANTY, EVEN IF SBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notices: Notices shall be given as follows:
To SBI: To be valid, notices must be sent by email (to legal@sparebackup.com) and by certified mail, return receipt requested, to Spare Backup Inc.; Attention: Legal Department; 72757 Fred Waring Drive, Palm Desert, California, 92260 or to such other address as may be designated by SBI from time to time.
To User: Notices to User will be sent by email at the email address reflected in User's registration information. Notices to User shall be deemed to have been received 24 hours after the email is sent. Notices to SBI shall be deemed to have been given three days after the date of mailing by certified mail, return receipt requested.
Assignability: SBI shall be entitled to assign this Agreement or any of its rights under this Agreement in its sole discretion. User shall not be entitled to assign, sublease, sublicense, sell, offer for sale, encumber or otherwise transfer or dispose of its rights under this Agreement, in whole or in part, without SBI's prior written consent.
Data Migration Service description: Spare Backup provides Data Migration Services (DMS) through the use of the Spare Switch product. DMS includes the transfer of files, folders and settings as selected by the end user during the data migration process. DMS includes the transfer of up to 50 gigabytes of data from one PC to another. DMS includes both an online and offline migration option, each option can be used once during the migration process. Data stored within Spare Backup’s infrastructure as a result of the migration service will be deleted in 30 days unless end user subscribes to either a monthly or Annual Spare backup service.
Waiver: The failure of SBI to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
Marketing and Publicity: You agree that SBI may use your name in its customer list to include, but not be limited to, posting to the Website, financial reports and prospectuses identifying you as a customer. Your account must be in good standing with SBI to remain listed. From time to time, SBI announces its business relationship with certain customers. If SBI wishes to announce its relationship with you, you will have an opportunity to review and approve any such announcement prior to issuance. Your approval shall not be unreasonably withheld, delayed or conditioned.
Miscellaneous: If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future law effective during the term hereof, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from these Terms and Conditions. A party will not be liable for nonperformance or delay in performance (other than with respect to payment obligations) caused by any event reasonably beyond the control of such party, including, but not limited to, acts of war (declared or undeclared), Acts of God, acts of terrorism, fire, strike, labor difficulties, acts or omissions of any governmental authority or of another party, compliance with government regulations, insurrection or riot.
Ownership of Intellectual Property: All trademarks, service marks, logos, and company names (each a "Mark") used in the Website are the property of SBI or third parties and are and shall remain the property of SBI and such third parties. Nothing contained in the Website or Service shall be construed as granting, by implication or otherwise, any license or right to use any Mark displayed on the Website or Service without the written permission of SBI or such third party that may own the Mark displayed on the Website or Service. Your use of any Mark displayed on the Website or Service is strictly prohibited.
You further acknowledge and agree that all other content and materials available on the Website, including the Software, are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. © 2005-2009 Spare Backup Inc. All rights reserved.