Backup Services Agreement
1. Use of Colosseum Online Inc.'s Backup Service (the "Service") consists of the right of a Subscriber of the Service ("Subscriber") to electronically transmit and store computer data using either a private data communications network, or the Internet into a location maintained by Colosseum Online Inc. ("Provider") and to retrieve said data should they be required. The Service is made available by Provider to Subscriber during the period Subscriber maintains a paid subscription to the Service. Subscriber must be a currently licensed user of the software for Services where software is required to provision access.
2. These terms (the "Agreement") and the Terms of Service published by Provider from time to time constitute the entire and only agreement between Provider and Subscriber (including Subscriber's designated users) with respect to the Service and supersede all other communications and agreements with regard to the subject matter hereof. Provider may modify this Agreement and may discontinue or revise any or all other aspects of the Service at its sole discretion and without advance notice. Unless otherwise agreed, Subscriber's right to use the Service or to designate users is not transferable and is subject to any limits established by Provider.
3. Subscriber shall pay in advance any registration or service fees and other charges incurred by Subscriber or Subscriber's designated users at the rates in effect for the billing period in which those charges are incurred. For situations where credit card payment is utilized, Subscriber shall maintain a current authorization for Provider to debit Subscriber's credit card account for such amounts. In addition, Subscriber shall provide Provider a current street address and Internet e-mail address for future communications and shall notify Provider of any change of address. Subscriber shall pay all applicable taxes related to use of the Service by Subscriber or Subscriber's designated users. For situations where the Subscriber's credit card issuing financial institution has been notified of a payment dispute, said Subscriber agrees that proof of Service usage by Subscriber constitutes Subscriber authorization to submit payment request to Credit Card issuing financial institution. Provider may, in addition, at its sole discretion and without notice to the Subscriber, (a) suspend its performance under this Agreement and deny Subscriber's and Subscriber's designated users' access to and use of the Service until Subscriber is back in good standing, or (b) terminate this Agreement and Subscriber's and Subscriber's designated users' access to and the use of the Service. Further, Provider may cancel the Service to Subscriber without cause upon thirty (30) days prior written notice. Subscriber must provide Provider with written notice of Subscriber's intent to terminate use of the Service. At the time of cancellation, the Subscriber's access to any of Subscriber's data stored by the Service may be permanently terminated. Provider will not provide a refund for any unused portion of the Services paid in advance by Subscriber. Provider may terminate Subscriber's use of the Service if, in Provider's sole discretion, Subscriber breaches or otherwise fails to comply with this Agreement. Company agrees that Provider has no obligation to retain Subscriber's data, and may delete Subscriber's Data, if Subscriber has breached this Agreement and such breach is not cured within 30 days of notice of such breach. Subscriber's obligation to make a payment of any outstanding, unpaid fees shall survive termination of this Agreement.
4. No bailment or similar obligation is created between Subscriber (and/or Subscriber's designated users) and Provider with respect to Subscriber's stored data. Subscriber is solely responsible for maintaining the confidentiality of passwords and encryption keys, including restricting the use of passwords and encryption keys by Subscriber's designated users. Subscriber shall be responsible for all use of the Service accessed through Subscriber's passwords. Provider SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO SUBSCRIBER, SUBSCRIBER'S DESIGNATED USERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE CONTENTS OF FILES STORED ON THE SERVICE. PROVIDER IS NOT RESPONSIBLE FOR PROVIDING SUBSCRIBER WITH PASSWORDS OR ENCRYPTION KEYS IN THE EVENT OF A FORGOTTEN PASSWORD OR ENCRYPTION KEY. WITHOUT THE CORRECT PASSWORDS AND ENCRYPTION KEYS, SUBSCRIBER'S DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE.
5. Subscriber is solely responsible for the content of all data Subscriber or Subscriber's designated users stores or retrieves from, or attempts to store or retrieve from the Service and for all transmissions by Subscriber or Subscriber's designated users from and to the Service. Subscriber and Subscriber's designated users' use of the Service is subject to all applicable provincial, federal and international laws and regulations. Subscriber and Subscriber's designated users will: (a) not use the Service for any illegal purposes; (b) not use the Service to store, retrieve, transmit or view any file, data, image or program that contains: (i) any illegal pictures, materials or information; (ii) any harassing, libelous, abusive, threatening, harmful, obscene or otherwise objectionable material of any kind or nature; (iii) any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable provincial, federal or international law or regulation; (iv) any code or material that violates the intellectual property rights of others; (v) any viruses, worms, "Trojan horses" or any other similar contaminating or destructive features; (c) not use the Service for any spamming, chain letters or other use that may otherwise disrupt the Service or the networks through which Subscriber or Subscriber's designated users access and use the Service; (d) the Service must not be used to sell digital content to others. It is not a medium for dissemination of digital content for commercial purposes. Provider may use automated procedures to detect unacceptable level of usage and may immediately disable offending accounts, and the process of detection may vary from time to time, based on misuse detected. The Service is NOT a service for storing and disseminating large amounts of data to large number of recipients. It is a backup service. Provider is not responsible for any business interruptions that may be caused due to this process. SUBSCRIBER'S BACKUP FILES MAINTAINED BY PROVIDER ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT SUBSCRIBER'S CONSENT UPON PRESENTATION TO SUBSCRIBER OR PROVIDER OF A SEARCH WARRANT OR SUBPOENA.
6. Subscriber agrees to indemnify Provider against all liability for use of Subscriber's account which liability is a direct result of Subscriber's misuse or negligent use of its account(s).
7. Provider may make copies of all files stored as part of the backup and recovery of servers utilized in connection with some of the Services. Provider is not obligated to archive such copies and will utilize them only for backup purposes. They will not be accessible to Subscriber.
8. Subscriber is responsible for and must provide all telephone and other equipment and services necessary to access the Service. Subscriber should maintain a primary electronic file of all materials stored in the Service. Subscriber should not utilize the service as a substitute for primary electronic file maintenance.
9. SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S SOLE RISK. NEITHER PROVIDER NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR PROVIDER OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NEITHER PROVIDER NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. PROVIDERS'S MAXIMUM TOTAL LIABILITY FOR ALL OCCURRENCES (IF ANY), TAKING PLACE DURING ANY TWELVE-MONTH PERIOD (OR A PORTION THEREOF, IF THIS AGREEMENT IS NOT IN EFFECT FOR TWELVE MONTHS), SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER FOR SERVICES PROVIDED BY PROVIDER UNDER THIS AGREEMENT DURING SAID TWELVE-MONTH PERIOD (OR DURING SUCH SHORTER PERIOD THAT THIS AGREEMENT IS IN EFFECT). YOU AGREE THAT THE FOREGOING SHALL CONSTITUTE YOUR EXCLUSIVE REMEDY. YOU HEREBY RELEASE PROVIDER, ITS OFFICERS, EMPLOYEES AND AFFILIATES FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.
10. The provisions of paragraphs 4, 6, 7, and 9 are for the benefit of Subscriber and its respective Suppliers, Licensors, Employees, and Agents; and each shall have the right to assert and enforce such provisions directly on its own behalf.
11. Not withstanding any acknowledgment of a Subscriber purchase order by Provider, any provision or condition in any purchase order, voucher, letter or other memorandum of the Subscriber which is in any way inconsistent with, or adds to, the provisions of this Agreement is null and void. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such term or provision shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court's opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the parties. The provisions of paragraph 9 and 11 and all obligations of and restrictions on Subscriber and its designated users shall survive any termination of this Agreement.
12. Provider shall not be liable for the failure or delay in performing its obligations hereunder, if such failure or delay is due to external circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Provider's products and services. Provider agrees to exercise reasonable efforts to mitigate the damage arising from such occurrences; however, under no circumstances will Provider or its affiliates be held liable for any cost, expense, liability, claim or damage due to such interruptions. In no event shall Provider or its affiliates be liable to Subscriber or any other person for any special, incidental, consequential or punitive damages of any kind, including, without limitation, refunds of fees, loss of profits, cost of cover, loss of income or cost of replacement services.
13. Provider will endeavor to restrict access to the data and files a Subscriber stores or retrieves from their account to persons accessing such data and files through use of their account or password. However, no password-protected system of data storage and retrieval can be made entirely impenetrable. Accordingly, Subscriber hereby acknowledges that it may be possible for an unauthorized third party to access, view, copy, modify and distribute the data and files Subscriber stores in their account.
14. Subscriber is solely responsible for (a) obtaining sufficient rights to the content of all data and files stored by Subscriber on Provider's servers and (b) ensuring that such content does not include any of the items listed in paragraph 5(b) above. Provider normally does not review, inspect, edit or monitor any content, data or files stored by You or any other user of the Service, including, without limitation, for viruses, worms, "Trojan horses" or any other similar contaminating or destructive features. However, if the Provider has suspicion that an account is being used for storage and distribution of any illegal material such as copy-righted content, Provider reserves the right to examine the content of the online storage and backup account. Provider may also access the account and data for support-related activities. Provider reserves the right to refuse, remove or disable access to any data or files stored on their servers with immediate effect that Provider learns may be illegal, may violate the rights of any third party or otherwise may be reasonably objectionable.
15. Should Subscriber become unsatisfied with the Service within the first 30 days of activation of the Service, Provider will refund Subscriber's fees paid for the first 30 days of the Service. Refunds are not available after the first 30 days of activation of the Service. Should Subscriber seek to resolve billing errors, Subscriber is instructed to contact Provider by phone or in writing within thirty (30) days of invoice date. Subscriber agrees not to chargeback any credit card payments for services rendered.
UPDATED: November, 2010