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DATAFORT Select Managed Backup Services
User terms & conditions |
End User License Agreement and Limited Warranty
Software Copyright
©2001 - 2009 DataFort
Ltd.
Documentation Copyright © DataFort
All rights reserved.
PLEASE READ THIS LICENSE CAREFULLY BEFORE
YOU START TO USE THE SOFTWARE YOUR
RIGHT TO USE THIS SOFTWARE PRODUCT IS SUBJECT TO THE
TERMS SET OUT IN THIS LICENSE AGREEMENT. CONTINUING
TO USE THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE
TERMS. IF YOU DO NOT ACCEPT OR UNDERSTAND THEM, YOU
SHOULD DELETE THE SOFTWARE FROM YOUR COMPUTER.
1. Definitions 1.1 In this License unless the context
otherwise requires:
“Agreement” means these terms and conditions.
"Backup" means the process of transferring
Data from your COMPUTER to DataFort's Server for storage.
"The Services" means the services offered
by DataFort for Data storage.
"DataFort’s Server" means the computer
system, owned by DataFort, supplied by an Internet Service
Provider or supplied by another third party and used
to provide DataFort’s Services, its Web Site and
other ancillary functions.
"The computer" means the server, laptop or
desktop computer that you use.
"Data" means any programs, data or other information
copied, or to be copied from your computer for storage
during a Backup.
"The Documentation" means the documentation,
in whatever form supplied, on how to use the Software.
"Photograph" means a photograph as defined
in s84(3) of the Criminal Justice and Public Order Act
1994 and includes the negative as well as the positive
and data stored on a computer disc or by other electronic
means capable of conversion into a photograph.
"The Proprietary Software" means the computer
programs used by DataFort or an Internet Service Provider.
"Pseudo-photograph" means an image, whether
made by computer-graphics or otherwise howsoever, which
appears to be a photograph, as defined in s84 (7) of
the Criminal Justice and Public Order Act 1994.
“The Service” means the On-Line Backup service
as defined in the service level statement.
“The Service Level Statement”
means the then current description and level of service
statement as maybe amended and posted on the DataFort
web site from time to time.
"The Software" means the computer program
supplied to enable your Data to be stored on DataFort's
Servers.
"The Subscription Fee" means the monthly amount
payable (if any) for The Services.
"Web Site" Means a site at which text, graphics,
data, files and information are stored electronically
and access to which is made available to organisations
and the general public via the Internet.
2 Grant of License You are not permitted to install
or run the Software or use the Documentation that will
be supplied to you without the permission of DataFort.
DataFort will grant you a License in consideration of
your:
2.1 agreement to the following terms and conditions;
2.2 subscription to The Services (your "Subscription");
and
2.3 continuing payment of the Subscription Fee, where
appropriate.
3. Permitted Acts by You You are permitted to do the
following:
3.1 load the Software on computers which are under your
control at all times and use it to store Data;
3.2 use the Software to Backup your computer;
3.3 use the Documentation in connection with the permitted
use of the Software;
3.4 transfer the Software from one computer to another
provided that the Software is used on only one computer
at a time;
3.5 make a backup copy of the Software in support of
your permitted use of the Software provided you label
the backup copy with DataFort's copyright notice - any
other copies of the whole or any part of the Software
are prohibited;
3.6 use the Software for your personal use or in your
business or profession - permitting unauthorised access
to, copying or use of the Software and Documentation
is a breach of this Agreement.
4. Prohibited Acts by You
You are prohibited from doing, or allowing others to
do, the following:
4.1 using or copying the Software except to the extent
permitted by this Agreement or by statute;
4.2 transferring the Software, the Documentation and/or
the License to any other individual or entity whether
on a permanent or temporary basis. If you transfer possession
of any copy of the Software to another person, your
License is automatically terminated;
4.3 distributing, renting, loaning, sub-licensing or
otherwise dealing in the Software and Documentation;
4.4 altering, adapting, merging, modifying or translating
the Software or the Documentation in any way for any
purpose, including, without limitation, for error correction
except to the extent permitted by statute;
4.5 reverse-engineering, disassembling or de-compiling
the Software except that the User may de-compile the
Software only to the extent permissible by law where
this is indispensable to obtain the information necessary
to achieve the inter-operability of an independently
created program with the Software or with another program
and such information is not readily available from DataFort
or elsewhere;
4.6 removing, changing or obscuring any product identification
or notices of proprietary rights and restrictions on
or in the Software and Documentation;
4.7 using the Services to store Photographs, Pseudo-photographs,
films, articles, sound records, messages, or any other
material that may be stored in a computer that may be
described as indecent or obscene or is otherwise illegal;
or
4.8 exporting, sending, transmitting or otherwise removing
the Software from the country in which you purchased
The Service other than on the computer in the normal
course of your business.
5. Term and Termination
5.1 The License will continue until terminated. You
consent to the commencement of the service immediately.
This removes your right to cancel under the Distance
Selling Regulations
5.2 Your License to use the Software and Documentation
will terminate immediately and automatically if your
Subscription is terminated, your payments cease or we
do not receive full, cleared payment for any reason
(or if payment is returned or removed from us) and in
any of these events the cost (including the administrative
costs) to us of dealing with that issue will e added
to the money due to us from you.
5.3 Your License will also terminate immediately and
automatically if you fail to comply with any of the
terms of this agreement.
5.4 Your License will also terminate without further
action or notice by DataFort if you become bankrupt,
go into liquidation, suffer or make any winding up petition,
make an arrangement with your creditors, have an administrator,
administrative receiver or receiver appointed or suffer
or file any similar action in consequence of debt.
5.5 DataFort may terminate your License at any time
upon giving you at least one month's notice, such notice
to end on the last day of a calendar month.
5.6 Following termination of your License, for whatever
reason:
5.6.1 you will destroy the Software and Documentation
together with all copies in any form, including copies
on your hard and backup disks;
5.6.2 any use of any copies of the Software or Documentation
will be unlawful; and
5.6.3 you authorise and consent to DataFort, after 30
days, being able to delete your stored Data without
liability for loss or damage.
5.7 Termination by you will only be accepted via email
from the customer’s own email domain or through
fax or through the post. Absolutely no termination instructions
will ever be taken from a customer over the telephone.
6. Limited Warranty by DataFort
6.1 DataFort warrants to you, as the Licensee,
that the Software when used properly, in the correct
environment, will provide the functions and facilities
and will perform substantially as described in the Documentation.
6.2
DataFort’s entire liability and your exclusive
remedy under the warranty, given in 6.1 above, will
be, at DataFort’s option, to either:
6.2.1 repair or replace the Software which does not
conform with the warranty; or
6.2.2 terminate the License and refund to you a percentage
of the Subscription Fee paid representing unused time.
7. Exclusion of Other Warranties by DataFort
7.1 Except for the express warranty in Clause 6 DataFort
and its suppliers make and you receive no other warranties,
conditions or representations, express or implied, statutory
or otherwise, and without limitation the implied terms
of merchantability and fitness for purpose are excluded.
DataFort does not warrant that the operation of the
Software or access to DataFort’s Server or web
site will be error free or uninterrupted. It is your
responsibility to ensure that the Software is suitable
for your needs and the entire risk as to the performance
and results of the Software and Documentation is assumed
by you.
7.2 In particular DataFort does not warrant that you
will be able to restore data after using the Software.
The warranties with regard to this Software are confined
to section 6.1 above and do not extend to your being
able to restore from the backed up data. You agree this
is a reasonable limitation of warranty given that you
have the daily control of activity using the Software
and you have the ability to make daily checks that it
is functioning to your individual (over which we have
no control) requirements.
8. Warranties and indemnities by the Licensee
8.1 You acknowledge that software in general is not
error-free and agree that the existence of such errors
shall not constitute a breach of this License.
8.2 You acknowledge that the Software was not designed
and produced to your requirements and that you were
responsible for their selection.
8.3 You warrant to DataFort that you will follow instructions
and guidance in any software manual or accompanying
papers and especially the same produced by the Software
itself.
8.4 You warrant to DataFort that at all appropriate
or material times, you will maintain and have maintained
a registration under the Data Protection Act 1984.
8.5 You warrant to DataFort that at no time will you
intentionally use the Software on a computer on which
there is a computer worm or virus of any type, regardless
of whether the worm or virus is capable of causing any
damage.
8.6 You hereby undertake to DataFort that you will,
without prejudice to any other right of action which
DataFort may have, at all time keep DataFort fully and
effectively indemnified against all and any liability
(which liability shall include, without limitation,
all losses, costs, claims, expenses, demands, actions,
damages, legal and other professional fees and expenses
on a full indemnity basis) which DataFort may suffer
or incur as a result of, or by reason of, any breach
or non-fulfilment of any of your obligations including
your warranties in respect of this License or in respect
of any Court action which may be brought in any way
connected to this Agreement whether by you, DataFort
or another.
9. Disclaimer
9.1 In no event will either DataFort or its suppliers
be liable for any direct, indirect, consequential, incidental,
or special damage or loss of any kind (including without
limitation loss of profits, loss of contracts, business
interruptions, inability to restore data, loss of or
corruption to data) however caused and whether arising
under contract, tort, including negligence, or otherwise
except that required by (or not allowed to be excluded
by) law.
9.2 If any exclusion, disclaimer or other provision
contained in this Agreement is held invalid for any
reason and DataFort becomes liable for loss or damage
that could not otherwise be limited, such liability,
whether in contract, negligence or otherwise, will not
exceed the amount actually paid by you for the Service.
9.3 DataFort does not exclude or limit liability for:
9.3.1 death or personal injury resulting from an act
or negligence of DataFort; or
9.3.2 damage caused by a defect in the Software within
the meaning of the Consumer Protection Act 1987 Part
I.
9.4 You acknowledge that the allocation of risk in this
Agreement reflects the price paid for the Software and
also that it is not within DataFort's control how and
for what purposes the Software and the Service are used
by you and that DataFort has no knowledge of the data
you intend to use the Software for, its value or use.
10. Entire Agreement
10.1 This Agreement constitutes the entire agreement
between the parties and with the exception of any fraudulent
misrepresentations, supersedes all prior oral or written
agreements, understandings or arrangements between them
relating to the subject matter of this Agreement.
10.2 Nothing in this Agreement shall create or be deemed
to create a partnership or the relationship of employer
and employee or principal and agent between the parties.
11. Severability If any provision of this Agreement
shall be found by any court or administrative body of
competent jurisdiction to be invalid or unenforceable
the invalidity or unenforceability of such provision
shall not affect the other provisions of this agreement
and all provisions not affected by such invalidity or
unenforceability shall remain in full force and effect.
The parties hereby agree to substitute for any invalid
or unenforceable provision a valid or enforceable provision
which achieves to the greatest extent possible the economic
legal and commercial objectives of the invalid or unenforceable
provision.
12. Waiver The waiver by either party of a breach or
default of any of the provisions of this Agreement by
the other party shall not be construed as a waiver of
any succeeding breach of the same or other provisions
nor shall any delay or omission on the part of either
party to exercise or avail itself of any right power
or privilege that it has or may have here under operate
as a waiver of any breach or default by the other party.
13. Notices Any notice, request, instruction or other
document to be given under the Terms and Conditions
shall be delivered or sent by first class post, email
or by facsimile transmission (such facsimile transmission
notice to be confirmed by letter posted within 12 hours)
to the postal address, email address or to the facsimile
number of the other party set out in this agreement
(or such other addresses or numbers as may have been
notified) and any such notice or other document shall
be deemed to have been served (if delivered or sent
by email) at the time of delivery, (if sent by post)
upon the expiration of 48 hours after posting and (if
sent by facsimile transmission) upon the expiration
of 12 hours after dispatch.
14. Headings Hadings to clauses in this agreement are
for the purpose of information and identification only
and shall not be construed as forming part of this agreement.
15. Law This agreement shall be governed by and construed
in accordance with English law and the parties hereto
agree to submit to the non-exclusive jurisdiction of
the English courts.
16. Payment All invoices must be paid in full within
30 days of issue. There is a minimum charge of £9.95
per month charged on all accounts regardless of whether
the service is used or not, or whether there is any
data stored in the account.
Subject to our right to strictly enforce our rights
in Section 5.2 above, accounts that fall into arrears
will be suspended, which will disable the automatic
backup process . A suspended account will continue to
accrue storage charges. A £25.00 reconnection
fee may be charged per account to reactivate after suspension.
Suspended accounts that are not settled within 90 days
will be cancelled, with the deletion of stored data,
and sent to a collection agency. Any fees associated
with recovering the owed balance will be added to the
sum owed during the license period. |
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