Terms and Conditions

TERMS AND CONDITIONS OF USE

PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU

These terms and conditions (hereinafter the “Agreement”) apply to your subscription to the Background Backup online backup subscription (the “Backup Service”) sold by Background Backup, Inc. (“Background”) including its affiliates or subsidiaries.

1. ACCEPTANCE OF THESE TERMS AND CONDITIONS:  By purchasing a subscription, you agree to be bound by the Agreement, which governs your use of the Backup Service, which is provided to you by Background.  If you agree to these Terms and Conditions on behalf of your employer, you represent that you have the authority to do so, in which case, reference hereinafter to “you” and “your” will also refer to your employer. If you do not agree to be bound by the Agreement, notify your provider at once.  Your subscription will be terminated and you will not be given access to the Backup Service.

2. THE BACKUP SERVICE allows you to back up and restore your data, photographs, videos, music and other digital files (collectively, the “Content”) via the Internet.  Backup of the Content you designate occurs via your Internet connection at the time and frequency set by you. The Backup Service is not an archival service.  It is solely your responsibility to maintain original versions of the Content that you backup through the Backup Service.  You must provide and pay for all computer equipment and services necessary to use Backup Service, including access to the Internet.  Background makes reasonable efforts to provide you with uninterrupted access to the Backup Service.  However, there will be occasions when the Backup Service will be interrupted, including, for maintenance, upgrades, emergency repairs or the failure of telecommunications equipment and services.  Background will take reasonable steps to minimize such disruption.  Please see “Disclaimer of Warranties” and “Limitation of Liability,” below, for important information about Background’s responsibilities.

3. YOUR ACCOUNT INFORMATION:  The period of a paid-subscription to The Backup Service begins upon written confirmation and subsequent payment for your subscription with Background, regardless of whether or when you activate or begin using your account. Unless your account is terminated sooner under the terms of the Agreement, and without additional written instruction from you to do otherwise, your subscription will automatically renew for an identical term and fee basis.  That renewal will require payment of a subscription or other fees.  Should payment not be received in accordance with the Agreement, your access to your Backup Service account will also terminate.  When you register for the Backup Service, you agree to provide accurate information about yourself and to keep that information up-to-date.  At registration, you will select a user name and password that you will need to restore your Content.  Background may use an escrowed copy of your password only to allow you to restore your Content (upon your presentation of your Account Information to Background).  Background will not otherwise use or share your escrowed password, unless required to do so by law.  Please keep your password safe and secure.  You will not be able to restore your Content without it.  It is your responsibility to maintain the confidentiality of your Backup Service user name and password (your “Account Information”).  You are responsible for all use of the Backup Service accessed through your Account Information.  You agree to immediately notify Background of any unauthorized use of your Account Information or any other actual or suspected breach of the Backup Service security.

4. YOUR USE OF THE BACKUP SERVICE:  You are solely responsible for all Content and Account Information that you transmit, store, view or restore through the Backup Service and to and from your account.  You agree that your use of the Background Service will fully comply with all applicable laws, rules and regulations and that it will also comply with all regulations, policies and procedures of networks through which you access and use the Backup Service.  Without limiting the generality of these requirements, you agree that you will not use the Backup Service to:

• Transmit, store, view or restore Content that:  (i) contains illegal material; (ii) is harassing, libelous, defamatory, abusive, threatening, harmful, pornographic, obscene or is otherwise tortious or offensive, as determined by Background in its sole discretion; (iii) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate a law; or (iv) contains any viruses, worms, Trojan horses or other code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Backup Service;

• Transmit, store, view or restore Content,in ways that would violate any applicable privacy policy or applicable privacy law, rule or regulation, including, without limitation, the Personal Information Protection and Electronic Documents Act, and other Federal and Provincial legislation that protect personal information, and personal health information in the private and public sectors. Background will not be responsible or liable for your failure to comply with the above.

• Plan or carry out any illegal activity;

• Violate the intellectual property rights or other rights of any third party, including, without limitation, any person’s copyrights in music, videos, images, books or other works;

• Breach any duty of confidentiality that you owe to anyone;

• Access or attempt to access any Backup Service account for which you have no access authorization;

• Sell Content to others, charge anyone for access to your Account or otherwise use, sell or share the Background Service for any unacceptable commercial purpose, except in the role of and in accordance with an Authorized Service Partner or Reseller Agreement with Background; or

• You acknowledge that U.S., Canada and other countries’ export laws may apply to the transfer of technology and software through the Backup Service.  You warrant that any software you transmit and store using the Backup Service contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license.   You also warrant that any technology you transmit and store is approved for export without a license.  Notwithstanding the foregoing, you are solely responsible for obtaining any specific licenses relating to the export of technology and/or software if a license is required.

You further agree that you will not:

• Create any links, whether on a web page, in an e-mail or otherwise, that direct anyone to any part of your Account; or

• Interfere with the servers or networks connected to the Backup Service.

5. INSPECTION OF YOUR CONTENT:  Background does not control the Content of any customer’s account and does not have any obligation to monitor or review Content for any purpose.  Notwithstanding the foregoing, if Background reasonably suspects that an Account is being used for storage or distribution of any Content that violates these Terms and Conditions, Background reserves the right, in its sole discretion and subject to applicable law, to terminate your account, delete your Content and/or, if applicable, notify the appropriate authorities, without prior notice to you.  YOUR CONTENT (INCLUDING PERSONAL INFORMATION) IS SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT YOUR CONSENT, UPON PRESENTATION TO YOU OR BACKGROUND OF A SEARCH WARRANT, SUBPOENA OR OTHER LEGAL PROCESS, OR IF BACKGROUND REASONABLY SUSPECTS A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED.  Unless required by law, you have no right to be notified by Background of any such disclosure.   YOU AGREE TO HOLD BACKGROUND HARMLESS FROM AND AGAINST, AND WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY CLAIMS YOU MAY HAVE AGAINST BACKGROUND RESULTING FROM ANY DISCLOSURE, INVESTIGATION OR ACT OR OMISSION OF BACKGROUND IN THE COURSE OF CONDUCTING OR COOPERATING WITH AN INVESTIGATION AS SET FORTH IN THIS SECTION.

6. SECURITY OF YOUR CONTENT:  The Backup Service provides secure Content transmission and storage.  Content is encrypted using a 448-bit Blowfish algorithm, and remains encrypted at all times prior to restore.  Users of the optional web-based restore feature will have their restored data protected with Secure Socket Layering (SSL) during transport.  Content marked for protection using a “Private Passphrase” or “Private Key” is encrypted based on a user-defined key, so only the user (you) can decrypt the Content using that key (your password).  However, because it is not possible to make encrypted files completely impenetrable, you acknowledge that it may be possible for an unauthorized third party to access your Content, and you agree that, in such event, any loss that you may suffer is subject to the Limitation of Liability section of these Terms and Conditions.  You acknowledge that the Backup Service may include technology and software that are subject to the export control laws and regulations of the U.S., Canada and other countries. You agree to abide by all applicable export control laws and regulations. Under such laws and regulations, the Backup Service may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries or used by you when visiting restricted countries.

7. MODIFICATIONS:  Background reserves the right to modify or discontinue the Backup Service, with or without notice or liability to you or any third party.

8. TERMINATION & CANCELLATION:  Background may, at its sole discretion, immediately terminate your access to the Backup Service, without liability to you or any third party, if it believes that you have violated these Terms and Conditions or if you fail to pay for the Backup Service as agreed.  In its discretion, and subject to applicable law, Background may prompt you to restore your Content prior to termination, after which Background will have no obligation to store your Content or permit you to restore it.  You may cancel the Backup Service by contacting Background.  Before you cancel, be sure that you have restored all of your Content from the Backup Service.  Once you submit payment for the Backup Service, the transaction is final, and you will not be refunded all or any part of your payment outside the standard Background refund policy. If you purchased your subscription from a vendor other than Background, that vendor’s refund policy applies.  If your subscription was purchased from Background, no refund will be issued more than 21 days after your purchase.  Other terms and conditions may apply, depending on your particular subscription type.  In the event that Background terminates your account, there will be no refunds.

9. USE OF INFORMATION SUBMITTED:  You agree that Background is free to use any comments, information or ideas in any communication you send to Background, without compensation or acknowledgement to you, for any purpose whatsoever, including, but not limited to, modifying and marketing the Backup Service or developing, manufacturing and marketing other products or services.

10. ELECTRONIC COMMUNICATIONS:  By using the Backup Service, you consent to receiving electronic communications and notices from Background, and you agree that any such communication will satisfy any legal communication requirements, including that such communications be in writing.

11. DISCLAIMER OF WARRANTIES:  The transmission, storage, viewing and restoration of Content through the Internet are subject to a variety of conditions that make such transmission, storage, viewing and restoration potentially unreliable.  ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT USE OF THE BACKUP SERVICE IS AT YOUR SOLE RISK. THE BACKUP SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.  BACKGROUND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO YOUR ACCOUNT OR THE BACKUP SERVICE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  WITHOUT LIMITING THE FOREGOING, BACKGROUND MAKES NO REPRESENTATION OR WARRANTY:  (A) THAT THE BACKUP SERVICE WILL MEET YOUR REQUIREMENTS; (B) THAT THE BACKUP SERVICE OR YOUR ACCESS TO IT WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE; (C) THAT YOUR CONTENT WILL NOT BE LOST, COMPROMISED OR DAMAGED; (D) THAT YOUR COMPUTER OR NETWORK OPERATIONS OR THOSE OF ANY PERSON WITH WHOM YOU SHARE CONTENT WILL NOT BE NEGATIVELY AFFECTED BY YOUR USE OF THE BACKUP SERVICE; (E) THAT ANY DATA ON YOUR COMPUTER OR NETWORK WILL NOT BE LOST OR DAMAGED AS A RESULT OF YOUR USE OR NON-USE OF THE BACKUP SERVICE; OR (F) THAT DEFECTS IN THE BACKUP SERVICE WILL BE CORRECTED.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BACKGROUND OR THROUGH THE BACKUP SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

12. LIMITATION OF LIABILITY:  TO THE FULLEST EXTENT PERMITTED BY LAW, BACKGROUND SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS, OR LOST REVENUE ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION:  (1) THE USE OF OR INABILITY TO USE THE BACKUP SERVICE, (2) LOSS OR ALTERATION OF CONTENT, (3) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE BACKUP SERVICE, (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF CONTENT OR OTHER TRANSMISSIONS, OR (5) ANY OTHER MATTER RELATING TO THE BACKUP SERVICE, EVEN IF BACKGROUND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT BACKGROUND’S TOTAL LIABILITY FOR DAMAGES RELATED TO THE BACKUP SERVICE IS LIMITED TO THE TOTAL AMOUNT YOU HAVE PAID FOR THE BACKUP SERVICE OVER THE 12 MONTH PERIOD LEADING UP TO THE CAUSE OF THE CLAIM, OR, IF YOUR CLAIM AROSE DURING A FREE TRIAL PERIOD, TO THE THEN-CURRENT ANNUAL AMOUNT CHARGED FOR THE BACKUP SERVICE.  Notwithstanding anything in these Terms and Conditions to the contrary, the remedies set forth in these Terms and Conditions shall apply: (i) even if such remedies fail their essential purpose, (ii) as a result of a breach of a fundamental term of the Agreement, or (iii) as a result of a fundamental breach of the Agreement.  Some jurisdictions do not allow the limitation or exclusion of liability for certain damages, so some of the above limitations may not apply to you, in which case Background’s liability shall be limited to the maximum extent permitted by applicable law.

13. THIRD-PARTY CLAIMS/INDEMNIFICATION:  You agree that you are personally responsible for your behavior in connection with the Backup Service.  Background shall not be liable for claims made against you or Background arising out of your use of the Backup Service, and you hereby agree to indemnify and hold Background, its related companies, officers, directors, employees and agents harmless from and against any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising, directly or indirectly, in whole or in part, out of your use of the Backup Service, the use of the Backup Service by any other person who accesses it using your Account Information, your Content, your violation of these Terms and Conditions or your infringement of any intellectual property or other right of any third party.

14. GOVERNING LAW:  THE PARTIES AGREE THAT THIS AGREEMENT, ANY SERVICES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN YOU AND BACKGROUND arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Background’s advertising, or any related transaction SHALL BE GOVERNED BY THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES.   If you use the Backup Service to back up Content in one jurisdiction (as defined by Background) but restore it in another jurisdiction, then the law governing these Terms and Conditions applicable to the backup shall also apply to the restoration.

15. BINDING ARBITRATION:  ANY CLAIM, DISPUTE, OR CONTROVERSY BETWEEN YOU AND BACKGROUND SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING INDIVIDUAL (NON-CLASS) ARBITRATION.

Before commencing any proceeding in the manner set out below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any proceedings unless the good faith negotiation fails.

Except where expressly prohibited by applicable statute, ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) YOU MAKE AGAINST BACKGROUND, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, “Background”) arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Background’s advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION in accordance with the laws of the Province of Ontario and the then current Rules of Procedure for Commercial Arbitration of the ADR Institute of Canada, Inc. (www.amic.org) (the “Institute”). The arbitration tribunal shall consist of one arbitrator chosen by the parties from a slate of eight (8) proposed arbitrators provided by the Institute. If the parties are unable to agree on the appointment of an arbitrator within seven (7) days after receipt of the slate provided by the Institute, either party may apply to the Court to have an arbitrator appointed. The final decision of the arbitrator shall be final and binding and no appeal shall lie therefrom, and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall have the power to order one party to contribute to the reasonable costs and expenses of the other party, or to pay all or any portion of the costs of the arbitration, as the arbitrator determines Where you are located in a location where a statute expressly indicates that an arbitration requirement will not apply to you, as a consumer, you agree to solely make any claim against Background in a small claims court located in Ontario or in the province in which you reside.

Notwithstanding the provisions in this Section 15 or anywhere else in this Agreement, Background shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark, property rights or confidential information or to preserve the status quo.

16. Language: The parties have required that this Agreement and all documents relating thereto be drawn-up in English.  Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

17. GENERAL:  If any provision of these Terms and Conditions is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced; provided, however, that if the individual (non-class) nature of the arbitration provision is found unenforceable, the entire arbitration provision shall not be enforced.  Headings are for reference purposes only and in no way define, limit, construe or describe the extent or scope of such section.  Background’s failure to enforce any provision of these Terms and Conditions shall not constitute a waiver of that or any other provision.  These Terms and Conditions set forth the entire understanding and agreement between you and Background with respect to the Backup Service.

18. Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and Background.

19. License; Title. Your subscription is made for a license to use the Backup Service. You obtain no right, title or interest in the ownership of any software, marketing materials or other intellectual property used by Background to deliver the Backup Service. You must notify Background within 21 days of the date of your order if you believe there is a defect with your subscription.

20. Software. The Backup Service is provided subject to a separate license agreement between you and Code 42 Software, controlling your use of the CrashPlan software and technologies. You agree that you will be separately bound by such license agreement.