License agreement between SharkSpot and our customers.
YOU ACKNOWLEDGE THAT YOU HAVE READ THE FOLLOWING LICENSE AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS LICENSE AGREEMENT.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE PRODUCT(S) IDENTIFIED ABOVE INCLUDING ANY ACCOMPANYING ELECTRONIC DOCUMENTATION (TOGETHER, THE “SOFTWARE”), YOU INDICATE YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT (“LICENSE AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, YOU SHOULD NOT CONTINUE WITH THE DOWNLOAD/INSTALLATION PROCESS.
YOU MAY NOT USE, COPY, MODIFY OR TRANSFER THE SOFTWARE OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE AGREEMENT.
This License Agreement is between SharkSpot, LLC, and you (AS THE “LICENSEE.”), the person or entity downloading and/or using the Software. This License Agreement sets forth terms and conditions applicable to your use of the Software.
The Software is licensed, not sold, to you. The term “Software” shall also include any future versions and updates of the Software licensed to you by SharkSpot, LLC. subject to the terms of this License Agreement.
Except as expressly permitted by this License Agreement, you hereby acknowledge and agree that: (1) you will not modify or translate the Software, except that you may configure the Software using the menus, options and tools provided for such purposes and contained in the Software; (2) you will not copy the Software except as permitted in the paragraph labeled COPYRIGHT; (3) you will not in any way reverse engineer, disassemble or decompile the Software or any portion thereof except to the extent and for the express purposes authorized by applicable law not withstanding this limitation; (4) you will not transmit, or provide access to, the Software over a network except as required by the Software’s primary functions (5) you will not sub license, assign, rent, sell, lease, distribute or otherwise transfer the Software or any of the rights granted by this License Agreement. You may, however, physically transfer the Software from one computer to another provided that you do not retain any copies of the Software on the prior computer except as authorized in the permitted use table; (6) you will not avoid, or attempt to avoid, any applicable time limitation; (7) you will not release the results of any performance or functional evaluation of the Software to any third party without prior written approval of SharkSpot, LLC. for each such release; and (8) you will not use SharkSpot, LLC.’s name or refer to SharkSpot, LLC. directly or indirectly in any papers, articles, advertisements, sales presentations, news releases or releases to any third party without the prior written approval of SharkSpot, LLC. for each such use. If you wish to develop an interface to the Software or merge the Software with any other software, you shall inform SharkSpot, LLC. and SharkSpot, LLC., at its option, and possibly for a fee, may provide you with information sufficient to enable interoperability between the Software and such other software or products.
The Software is copyrighted by SharkSpot, LLC. and/or its suppliers. You may not copy the Software except to provide a backup copy and to load the Software into the computer as part of executing the Software. Solely with respect to electronic documentation included with the Software, you may make an unlimited number of copies (either in hardcopy or electronic form), provided that such copies shall be used only for internal purposes and are not republished or distributed to any third party. Any and all other copies of the Software and/or the documentation made by you are in violation of this License Agreement.
You agree that SharkSpot, LLC. and/or its suppliers retain all right, title and interest in and to the Software and all copies at all times, regardless of the form or media or on which the original or other copies may subsequently exist. You agree that you neither own nor hereby acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. You agree to use your best efforts to prevent and protect the contents of the Software from unauthorized disclosure or use. SharkSpot, LLC. and/or its suppliers reserve all rights not expressly granted to you. SharkSpot, LLC.’s suppliers are the intended third party beneficiaries of this License Agreement and have the express right to rely upon and directly enforce the terms set forth herein. Any content or information accessed through the Software is the property of the applicable content/information owner and may be protected by applicable copyright law. This License Agreement gives you no rights to such content or information.
5. DESCRIPTION OF SERVICES
Subject to SharkSpots acceptance of Your registration and Your compliance with the terms and conditions of this Agreement, SharkSpot will provide You with the following service (the “Basic Service”) : (a) SharkSpot will establish one (1) online storage and online backup account in Your name on the SharkSpot servers (the “Account”); (b) SharkSpot will initially allow you to store up to a total of 50GB of data files in your Account on a trial basis for 30 days if the trial option is chosen, or will allow you to store up to a limit higher than the trial offer depending on the user’s choice among the provided storage options for a subscription fee; and (c) SharkSpot will allow You to retrieve data files from Your Account.(d) In Your use of the Service, you are responsible for providing the following: (i) all equipment, such as a computer and modem, necessary to access the World Wide Web; (ii) Your own access to the World Wide Web; and (iii) payment of all telephone or other fees associated with such access. ONLINE BACKUP MANAGER provides an extensive range of services. It is possible that one or more of these services may not be available at certain times. Refer the home page to get the status on the services.
6. CONDITIONS OF USE
You are solely responsible for the content of all data You store or retrieve from, or attempt to store or retrieve from, Your Account and the Public Folders and for all transmissions by You from and to Your Account. Your use of the Service is subject to all applicable local, state, national and international laws and regulations. You 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, vulgar, pornographic, 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 local, state, national or international law or regulation; (iv) any code or material that violates the intellectual property rights of others; (v) any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); or (vi) any viruses, worms, “Trojan horses” or any other similar contaminating or destructive features; (c) comply with United States and other applicable law regarding the exportation and re-exportation of any data or other materials from the United States or other jurisdictions through the Service; (d) not use the Service for any spamming, chain letters or other use that may otherwise disrupt the Service or the networks through which You access and use the Service; (e) comply with all regulations, policies and procedures of networks through which You access and use the Service; and (f) not access or attempt to access any Service account for which You have no access authorization or duplicate, modify, distribute or display any of the data or files from any such account.(g) not use sharing features in a way that amounts to ‘publishing’ and restrict the use of sharing features to share data between friends, colleagues and business partners, in a very limited sense. (h) ONLINE BACKUP MANAGER service should not be used to sell digital content to others. It is not a media for dissemination of digital content for commercial purposes. ONLINE BACKUP MANAGER 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. ONLINE BACKUP MANAGER is NOT a service for storing and disseminating large amounts of data to large number of recipients. It is an Online backup and storage service. ONLINE BACKUP MANAGER is not responsible for any business interruptions that may be caused due to this process.
7. REGISTRATION INFORMATION / CREDIT CARD CHARGES
You authorize a recurring monthly or annual charge to your credit card in exchange for use of the ONLINE BACKUP MANAGER service as indicated by published standard plans or a customized quote provided for your specific use. You also agree that the enrollment for the next service period is automatic. Refunds on a pro-rated basis are issued only for monthly plans. When yearly subscriptions are cancelled before the subscriptions end, refunds are issued based on a prorated calculation of the subscription charges at the monthly rate for the plan, for the actual number of days the account was subscribed(the number of days between the most recent yearly charges and the cancellation date). If the calculated refund amount exceeds the yearly subscription rate, then no refund is issued.
ONLINE BACKUP MANAGER will not issue any prorated refunds for the remaining period during the month when an account with a monthly subscription plan (“current plan”) is downgraded to a smaller plan (“new plan”) (a plan that costs less per month than the current plan) during the middle of a month. However the rate applicable to the new plan will automatically be charged starting the first of the subsequent month.
ONLINE BACKUP MANAGER does not allow storage space beyond the specified plan limit chosen by the user. Backup will fail until the space is added to current plan.
8. ACCOUNT AND PASSWORD
After You accept this Agreement and Your registration has been accepted by SharkSpot, You will receive a link by email, on activation of which Your Account will be established. You are solely responsible for any consequences arising out of Your failure to maintain the confidentiality of Your Password/encryption password. You will notify SharkSpot of any unauthorized use or other breach in security of Your Account immediately after You learn of the same.
8. (a) ENCRYPTION PASSPHRASE SYSTEM
ONLINE BACKUP MANAGER enforces encryption of data on storage with a user defined key known only to the user and no one else. Even the ONLINE BACKUP MANAGER personnel do not have access to this key as it is not stored on the ONLINE BACKUP MANAGER servers. It is very important that you store this key in a safe place and maintain this key in printed form for easier reference. Any data backed up using ONLINE BACKUP MANAGER can only be retrieved using this key and if you forget or misplace this key then your data may not be retrievable. ONLINE BACKUP MANAGER is NOT responsible for loss of data arising as a result of such cases.
If you are installing the ONLINE BACKUP MANAGER application on a fresh machine, re-enter the encryption password key correctly. IF YOU ENTER AN INCORRECT ENCRYPTION PASSWORD KEY, YOUR DATA WILL NOT BE RETRIEVED CORRECTLY.
9. SECURITY OF STORED DATA AND FILES
SharkSpot will endeavor to restrict access to the data and files You store or retrieve from Your Account to persons accessing such data and files through use of Your Account or Password. However, no password-protected system of data storage and retrieval can be made entirely impenetrable. Accordingly, You hereby acknowledge that it may be possible for an unauthorized third party to access, view, copy, modify and distribute the data and files You store in Your Account.
10. CONTENT OF STORED DATA AND FILES
You are solely responsible for (a) obtaining sufficient rights to the content of all data and files stored by You on SharkSpots servers and (b) ensuring that such content does not include any of the items listed in paragraph 2(b) above. SharkSpot 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 SharkSpot has suspicion that an account is being used for storage and distribution of any illegal material such as copy-righted content, SharkSpot reserves the right to examine the content of the online storage and backup account. SharkSpot reserves the right to refuse, remove or disable access to any data or files stored on SharkSpots servers with immediate effect that SharkSpot learns may be illegal, may violate the terms of paragraph 2 above, may violate the rights of any third party or otherwise may be reasonably objectionable.
11. BACKUPS OF YOUR DATA
ONLINE BACKUP MANAGER may maintain regular backups of data to recover from any software/hardware failures. However, the most important step for a reliable backup is at the user end; user is expected to view and verify the logs periodically to insure that the backups do take place successfully, and take necessary corrective action if there are errors. User is also expected to periodically upgrade the backup client to the most recent version for improved reliability of backups.
12. DISCLAIMER OF WARRANTY
YOUR USE OF YOUR ACCOUNT AND THE SERVICE IS AT YOUR SOLE RISK. YOUR ACCOUNT AND THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. SHARKSPOT, ON BEHALF OF ITSELF AND ITS DISTRIBUTORS, ADVERTISERS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO YOUR ACCOUNT AND THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT). YOUR ACCOUNT AND THE SERVICE MAY NOT MEET YOUR NEEDS. SHARKSPOT MAKES NO REPRESENTATION OR WARRANTY: (A) THAT YOUR ACCOUNT OR THE SERVICE WILL MEET YOUR NEEDS; (B) THAT ACCESS TO YOUR ACCOUNT OR THE SERVICE WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE; (C) THAT THE DATA AND FILES YOU STORE IN YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED; (D) THAT THE DATA ON YOUR DESKTOP OR SERVER WILL NOT BE LOST OR DAMAGED; OR (E) THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ANY MATERIAL OR DATA YOU RETRIEVE THROUGH THE USE OF THE SERVICE IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE RETRIEVAL OF SUCH MATERIAL OR DATA.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY SHALL SHARKSPOT, LLC., ITS DISTRIBUTORS AND SUPPLIERS, OR ANY OTHER PERSON WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY GENERAL, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR OTHER DAMAGES OF ANY CHARACTER ARISING OUT OF THIS LICENSE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF DATA, LOSS OF PROFITS, DATA OR OUTPUT FROM THE SOFTWARE BEING RENDERED INACCURATE, FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS, DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES OF WHATEVER NATURE, EVEN IF SHARKSPOT, LLC. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Product supports certain cryptographic and authentication features, including but not limited to Secure Sockets Layer communications, that may require the installation and/or use of a digital certificate. Digital certificates are issued, validated, and revoked by third-party certification authorities (“CAs”) over which Licensor has no control. Licensee is solely responsible for familiarizing itself with the terms and conditions established by a CA for the use of, or reliance upon, its digital certificates, including but not limited to any obligation of Licensee to validate a digital certificate, maintain the security of a cryptographic key or password, or pay fees for certification services. SharkSpot, LLC. has preloaded digital certificates of certain CAs into the Product in order to facilitate the recognition of digital certificates that such CAs have issued to persons, organizations, or devices.
LICENSEE IS SOLELY RESPONSIBLE FOR ANY DECISION TO USE OR RELY UPON A DIGITAL CERTIFICATE, INCLUDING THOSE DIGITAL CERTIFICATES THAT SHARKSPOT, LLC. HAS PRELOADED INTO THE PRODUCT. SHARKSPOT, LLC. BEARS NO RESPONSIBILITY FOR THE VALIDITY OR ACCURACY OF ANY DIGITAL CERTIFICATE, OR FOR THE SECURITY OR INTEGRITY OF ANY COMMUNICATION AUTHENTICATED BY A DIGITAL CERTIFICATE.
14. EXPORT CONTROLS
This Software is subject to export control. The Software may be transmitted, exported, or re-exported only under applicable export laws and restrictions and regulations of the United States Bureau of Export Administration or foreign agencies or authorities. By downloading or using the Software, you are agreeing to comply with export controls.
The Software may not be downloaded or otherwise exported or re-exported to any country subject to U.S. trade sanctions governing the Software, sanctioned countries including Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or by citizens or residents of such countries except citizens who are lawful permanent residents of countries not subject to such sanctions, or by anyone on the US Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the US Commerce Department’s Table of Denial Orders.
You will defend, indemnify and hold SharkSpot, its parents, subsidiaries, affiliates, agents, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of (a) Your use of Your Account and the Service, (b) any data files and content stored by You in Your Account and otherwise on the SharkSpot servers and (c) any violation of this Agreement by You.
16. NO OBLIGATION
SharkSpot, LLC. is under no obligation to develop, maintain or market the Software. Future versions of the Software, if any, may not be compatible with the current release of the Software.
Any comments or materials sent to SharkSpot, LLC. including feedback data, such as questions, comments, suggestions, or the like regarding the Software (collectively “Feedback”), shall be deemed to be non-confidential. SharkSpot, LLC. shall have no obligation of any kind with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute the Feedback to others without limitation. Further, SharkSpot, LLC. shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products incorporating such Feedback.
18. U.S. GOVERNMENT RIGHTS
If the Software is downloaded or installed for or on behalf of the United States of America, its agencies and/or instrumentalities (“US Government”), the Software is provided to the US Government as commercial computer software under FAR 12.212 and DFARS 227.7202, or an equivalent provision (e.g., in supplements of various US government agencies, as applicable), and the restrictions set forth in this License Agreement. Manufacturer is SharkSpot, LLC., Inc., and/or its affiliates, SharkSpot, LLC.
You must reproduce and include any copyright notices, trademarks or other proprietary legends of SharkSpot, LLC. and its suppliers on any copy of the Software made by you. This License Agreement is governed by the laws of the State of Indiana, United States, without reference to conflict of laws provisions or the United Nations 1980 Convention on Contracts for the International Sale of Goods and any amendments thereto.
You acknowledge that a violation of this License Agreement may cause irreparable harm to SharkSpot, LLC., and you agree that, in addition to any other remedies provided by law, SharkSpot, LLC. shall be entitled to seek injunctive relief against any such violation without having to post a bond. If any provision of this License Agreement is ruled invalid, such invalidity shall not affect the validity of the remaining portions of this License Agreement. All terms of any purchase order or other ordering document submitted by you shall be superseded by this License Agreement. Should you have any questions concerning this License Agreement, you may contact SharkSpot, LLC. The product name for the Software is a trademark or registered trademark of SharkSpot, LLC.. All other trademarks displayed by the Software are the property of their respective owners.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE REGENTS OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO,PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Either you or SharkSpot may terminate this Agreement with or without cause at any time by giving notice of such termination to the other in the manner described in paragraph 22 below. Further, if SharkSpot believes that You have violated Your obligations under this Agreement, SharkSpot may, at its option and in addition to its other remedies, immediately and without notice, suspend Your Account, remove and destroy data and files stored by You on SharkSpots servers and/or terminate this Agreement. SharkSpot will not be liable to You or any third party for any suspension or termination of Your Account or the Service. Should You object to any terms and conditions of this Agreement or any subsequent modifications thereto or become dissatisfied with the Service in any way, Your only recourse is to immediately: (a) discontinue use of the Service; (b) terminate this Agreement; and (c) notify SharkSpot of such termination. Upon any termination of this Agreement, You will cease use of the Service and, within five (5) days after the effective date of such termination, remove all of Your stored data files from the SharkSpot servers. SharkSpot may destroy any of Your stored data files that are not removed from SharkSpots servers within such five (5)-day period. Paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 of this Agreement (and any other provision that can be reasonably construed to survive termination) will survive termination of this Agreement.
Any notice under this Agreement given by SharkSpot to You will be deemed to be properly given if sent by email to Your email address as set forth in the Registration Information, or by a startup screen that starts before Your next use of the Service or by written communication mailed by first class US mail to Your address on record in the Registration Information or by a display about the changed information in the agreement on the index page if the change is generic. It is important that you maintain a correct working email ID and update it if necessary to be able to receive SharkSpots communication. Any notice under this Agreement given by You to SharkSpot will be deemed to be properly given if received by email sent to [email protected]
This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
23. MODIFICATIONS TO THIS AGREEMENT
The terms and conditions of this Agreement may be changed by SharkSpot from time to time. Upon any such change, SharkSpot will notify You of such change in accordance with paragraph 22 above and post an updated version of this Agreement on the SharkSpots ONLINE BACKUP MANAGER. Your use of any Services after such notification will constitute Your acceptance of such changed terms and conditions.
Your right to use the Service is personal to You, and You will not assign any of Your rights, obligations or interest in this Agreement or Your Account. Without limiting the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. SharkSpots failure to insist upon or enforce strict performance of any provision or right of this Agreement will not be construed as a waiver of any provision or right. This Agreement will be governed by the laws of the State of Indiana, without regard to its conflict of laws rules. The provisions of the U.N. Convention on Contracts for the International Sale of Goods and any successor treaties will not apply. You consent to the venue and exclusive jurisdiction of the state and federal courts located in Lake County, Indiana, U.S.A., with regard to any claim arising under or otherwise occurring by reason of this Agreement or Your use of the Service or Your Account. You will commence any claim or cause of action arising under or otherwise occurring by reason of this Agreement within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous understandings and agreements.