Data Deposit Box End User Software License And Services Agreement
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 ACPANA BUSINESS SYSTEMS INC. THIS IS THE END USER SOFTWARE LICENSE AND SERVICES AGREEMENT THAT YOU ARE REQUIRED TO ACCEPT BEFORE DOWNLOADING, INSTALLING AND/OR USING DATA DEPOSIT BOX 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 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. THIS AGREEMENT IS ENTERED INTO BY ACPANA BUSINESS SYSTEMS INC., CARRYING ON BUSINESS AS DATA DEPOSIT BOX (“DATA DEPOSIT BOX”) AND YOU AS END USER OF THE SOFTWARE PRODUCT AND/OR ANY SERVICES OFFERED BY DATA DEPOSIT BOX (“END USER”).
1. The Software Product and Services
2. Software License Grant; Consent to Automatic Installation of Updates
Upon the following terms and conditions including payment of any applicable fees:
(i) DATA DEPOSIT BOX hereby grants to END USER and END USER hereby accepts from DATA DEPOSIT BOX, 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 DATA DEPOSIT BOX 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 DATA DEPOSIT BOX’s sole discretion. END USER expressly consents to any and all actions taken by DATA DEPOSIT BOX 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 DATA DEPOSIT BOX (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 DATA DEPOSIT BOX 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 DATA DEPOSIT BOX 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 DATA DEPOSIT BOX, which consent shall be at DATA DEPOSIT BOX’s discretion. Any such copy which is made is subject to the provisions of this Agreement, and all titles, trademarks, 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 DATA DEPOSIT BOX) is solely responsible for all Content uploaded, posted, emailed, transmitted, shared, accessed and/or otherwise made available via the Services. DATA DEPOSIT BOX 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 DATA DEPOSIT BOX 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. DATA DEPOSIT BOX does not pre-screen Content. However, DATA DEPOSIT BOX reserves the right, in its discretion, to refuse or move any Content that is available via the Services. END USER consents to DATA DEPOSIT BOX 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. DATA DEPOSIT BOX 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. DATA DEPOSIT BOX 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 DATA DEPOSIT BOX, 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 DATA DEPOSIT BOX, 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 DATA DEPOSIT BOX reserves the right to remove from its servers any Content that may expose DATA DEPOSIT BOX 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 DATA DEPOSIT BOX 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. DATA DEPOSIT BOX 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. DATA DEPOSIT BOX 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 DATA DEPOSIT BOX and END USER’s use of the Software Product and/or Services, END USER agrees to pay DATA DEPOSIT BOX by authorized credit card the then applicable fees (“Fees”), together with all applicable taxes. DATA DEPOSIT BOX’s pricing plan can be viewed here: www.DataDepositBox.com/pricing/. END USER has thirty (30) days from the date that any discrepancy appears in END USER’s statement or any invoice to notify DATA DEPOSIT BOX 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 DATA DEPOSIT BOX with five (5) days written notice by e-mail or letter. If END USER cancels the credit card provided to DATA DEPOSIT BOX or the card is otherwise terminated, END USER must immediately provide DATA DEPOSIT BOX with a new valid credit card number. END USER authorizes DATA DEPOSIT BOX, from time to time, to undertake steps to determine whether the credit card number provided to DATA DEPOSIT BOX is a valid credit card number. In the event that END USER does not provide DATA DEPOSIT BOX 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, DATA DEPOSIT BOX may terminate this Agreement without cause by providing END USER with thirty (30) days prior notice by e-mail. In addition, DATA DEPOSIT BOX 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, DATA DEPOSIT BOX 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 DATA DEPOSIT BOX. This Agreement shall automatically be terminated if (i) END USER breaches any term or condition of this Agreement as determined by DATA DEPOSIT BOX in its sole and absolute discretion, (ii) END USER files a voluntary petition in bankruptcy, (iii) END USER makes an assignment for the benefit of creditors, or (iv) an involuntary petition in bankruptcy is filed against END USER and is not discharged for a period of thirty (30) days.
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. DATA DEPOSIT BOX 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 DATA DEPOSIT BOX DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM DATA DEPOSIT BOX’S 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. DATA DEPOSIT BOX CANNOT GUARANTEE THAT SUCH EVENTS, INCLUDING BUT NOT LIMITED TO COMPUTER VIRUS, THEFT, OPERATOR ERROR OR HACKER PENETRATION, WILL NOT OCCUR. ACCORDINGLY, DATA DEPOSIT BOX 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.
DATA DEPOSIT BOX’S 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL DATA DEPOSIT BOX, 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 DATA DEPOSIT BOX 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. END USER IS ADVISED THAT IF IT HAS ANY CLAIMS OR CAUSES OF ACTION AGAINST DATA BOX, SAID CLAIMS OR CAUSES OF ACTION MUST BE RAISED WITHIN SIX (6) MONTHS OF WHEN SUCH CLAIMS OR CAUSES OF ACTION OCCUR OR SAME SHALL BE DEEMED WAIVED.
10. Referral Program Terms and Conditions
The DATA DEPOSIT BOX Referral program (the “Program”) is intended for use by END USERs who have subscribed to the online back-up Service offered by DATA DEPOSIT BOX to introduce END USER’s family, friends and colleagues to the online back-up Service offered by DATA DEPOSIT BOX. 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 DATA DEPOSIT BOX provides to the END USER (approximately 30 days after the trial period ends). This offer applies only when the Referred Party is a new DATA DEPOSIT BOX 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 DATA DEPOSIT BOX 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 DATA DEPOSIT BOX or their immediate family members (spouse, parents, siblings, and children). The Program is void where prohibited. DATA DEPOSIT BOX 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. DATA DEPOSIT BOX 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, DATA DEPOSIT BOX shall have the right to take appropriate administrative and/or legal action, including criminal prosecution, as it deems necessary in its sole discretion. DATA DEPOSIT BOX 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 DATA DEPOSIT BOX in its sole discretion. To be eligible to receive the Credit, the Referred Party must meet all of the requirements of DATA DEPOSIT BOX to subscribe to the online back-up Service, must be accepted by DATA DEPOSIT BOX 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 DATA DEPOSIT BOX. Referral Credits may not be transferred or assigned. If you have questions regarding the Program, please contact DATA DEPOSIT BOX at support@DataDepositBox.com. The Program does not apply to any other Services offered by DATA DEPOSIT BOX.
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 DATA DEPOSIT BOX 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 DATA DEPOSIT BOX; (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 DATA DEPOSIT BOX disclaims any liability obligations to END USER or any third party of any kind with respect to such Beta Service. END USER acknowledges that DATA DEPOSIT BOX 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 DATA DEPOSIT BOX a perpetual, royalty-free worldwide license to use and/or incorporate such feedback into any DATA DEPOSIT BOX product or service (including the Beta Service) at any time at the sole discretion of DATA DEPOSIT BOX. 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 DATA DEPOSIT BOX.
12. General Provisions
(a) Survival. The limitations of liability and ownership rights of DATA DEPOSIT BOX 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 by END USER to this Agreement and any attempt by END USER to do so shall be null, void and of no force and effect.
(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 exclusive jurisdiction of the Courts of the Province of Ontario located within the City of Toronto for all purposes. 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
5. Payment of Fees
In consideration of the Services provided to END USER by DATA DEPOSIT BOX and END USER’s use of the Software Product and/or Services, END USER agrees to pay DATA DEPOSIT BOX by authorized credit card the then applicable fees (“Fees”), together with all applicable taxes. DATA DEPOSIT BOX offers END USER the opportunity to subscribe to the monthly, annual, or multi-year subscription Fees, as applicable. The DATA DEPOSIT BOX Software Product is an automatically renewing Service. Unless you cancel or notify DATA DEPOSIT BOX that you do not want your account to auto-renew, you agree that DATA DEPOSIT BOX will charge the then applicable Fees and END USER authorizes DATA DEPOSIT BOX to make this charge to the credit card associated with END USER’s account. DATA DEPOSIT BOX’s pricing plan can be viewed here: www.DataDepositBox.com/pricing/. END USER has thirty (30) days from the date that any discrepancy appears in END USER’s statement or any invoice to notify DATA DEPOSIT BOX 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 DATA DEPOSIT BOX with five (5) days written notice by e-mail or letter. Fees paid for subscriptions to the Services are non-refundable. If END USER purchased an annual plan and opts for a monthly payment plan, END USER may cancel subscription provided that END USER will not receive a refund of the annual subscription Fees or any pro-rated portion thereof. END USER shall monitor and maintain account within all plan-specified limits. In the event END USER usage exceeds subscription limit, END USER agrees DATA DEPOSIT BOX may, in its sole discretion, (i) upgrade END USER to a plan to address this excess usage and charge END USER for such excess usage by authorized credit card, or (ii) suspend END USER account until END USER manually upgrades to a plan to address this excess usage or END USER manually decreases the amount of data stored to an amount equal to or lower than the END USER subscription limit, and/or (iii) terminate END USER account for cause. Usage and associated charges for excess usage shall be determined based solely upon DATA DEPOSIT BOX’s collected usage information. Unused monthly or annual allotments shall not accrue or carry over. Upon any upgrade or increase to subscription, END USER shall be responsible for the new Fees. If END USER cancels the credit card provided to DATA DEPOSIT BOX or the card is otherwise terminated, END USER must immediately provide DATA DEPOSIT BOX with a new valid credit card number. END USER authorizes DATA DEPOSIT BOX, from time to time, to undertake steps to determine whether the credit card number provided to DATA DEPOSIT BOX is a valid credit card number. In the event that END USER does not provide DATA DEPOSIT BOX 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.
11. Trials and Promotions
Occasionally, DATA DEPOSIT BOX may offer trials or promotions to new END Users. DATA DEPOSIT BOX reserves the right, in its sole discretion, at any time to (without any liability thereof) discontinue, modify, suspend, reorganize or terminate any such trials and promotions. Any trial or promotion will be subject to the terms and conditions of such trial or promotion, but in no event whatsoever shall any trial or promotion modify or change any of the terms and conditions of this Agreement.