ONLINE BACKUP SOFTWARE LICENSE AGREEMENT
This agreement (this “Agreement”) is made effectice as of (the “Effective Date”), between CyberLynk Network, Inc (“CyberLynk”) and Customer governs provision of CyberLynk’s Offsite Backup service (the “Service”). This Agreement is effective as of the moment Customer (a) indicates assent through the CyberLynk Website or (b) establishes an account with CyberLynk or uses the Service or any element thereof. CyberLynk may revise this Agreement from time to time by posting a new version hereof on the CyberLynk Website, and if Customer signed up for the Service under a previous version, such revised terms will become effective thirty (30) days after the Posted/Revised date listed above (“New Effective Date”). Continued use of the Service after the New Effective Date constitutes acceptance of such revisions to this Agreement.
NOTE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BEFORE COMPLETING THE INSTALLATION OR USING THE SOFTWARE
1. INSTALLING AND USING THE SOFTWARE ACCOMPANYING THIS LICENSE INDICATES THE ACCEPTANCE BY YOU AND/OR YOUR COMPANY (COLLECTIVELY THE “USER”) OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO INSTALLING OR USING THE SOFTWARE. IF THE USER DOES NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE. PLEASE NOTE THAT THE USER MAY NOT USE, COPY, MODIFY OR TRANSFER THE PROGRAM OR DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
2. LICENSE: This software program (the “Program”) and the accompanying on-line read-me and help files (the “Documentation”) are licensed, not sold, to the User by Wisconsin CyberLynk Network, Inc. (“CyberLynk”) or its authorized Distributor. The term “Program” shall also include any updates of the Program licensed to the User by CyberLynk or its authorized Distributor. Subject to the terms of this agreement, the User has a non-exclusive and nontransferable right to use the Program and Documentation for the sole purpose of accessing CyberLynk’s data services (“Services”) and not for resale or rental or the like. The User may use this Program on any computer for connecting to a legally licensed version of CyberLynk’s software or service, both of which must be located in the United States and its territories or any other country to which this Program is legally exported. The User agrees to use your best efforts to prevent and protect the contents of the Program and Documentation from unauthorized disclosure or use. CyberLynk and its licensors reserve all rights not expressly granted to the User. CyberLynk’s licensors are the intended third party beneficiaries of this agreement and have the express right to rely upon and directly enforce the terms set forth herein.
3. LIMITATION ON USE: User may not modify, network, rent, lend, loan, lease, sell or otherwise transfer or distribute the Program or Documentation, or copies of either to others. User may not modify, translate or create derivative works based upon the Program or the Documentation in whole or in part. User may not reverse assemble, reverse compile or otherwise attempt to derive the source code from the Program. User may not release the results of any performance or functional evaluation of any Program to any third party without prior written approval of CyberLynk for each such release. User may electronically transmit the Program from one computer to another or over a network however it will remain the responsibility of the receiving person to individually accept the terms of this Software Licensing Agreement.
4. BACKUP AND TRANSFER: User may make up to five (5) copies of the Program, solely for backup purposes, so long as User includes CyberLynk’s copyright notice and any proprietary legends. User may not sublicense, assign, delegate, rent, lease, time-share or otherwise transfer this license or any of the related rights or obligations for any reason. Any attempt to make any such sublicense, assignment, delegation or other transfer by the User shall be void.
5. COPYRIGHT: The Program and related Documentation are copyrighted by CyberLynk and/or its licensors. User may not copy the Program or Documentation except to load the Program into a computer as part of executing the Program, or to provide the single backup copy permitted by this license. User may make one copy of the Documentation and print one copy of any on-line documentation or other materials provided to User in electronic form. Any and all other copies of the Program and Documentation made by User are in violation of this license.
6. OWNERSHIP: CyberLynk and/or its licensors retain all right, title and interest in and to the Documentation and all copies and the Program at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. User owns only the medium on which the Program is recorded.
7. TERM AND TERMINATION: This license is effective until terminated. User may terminate this license at any time by destroying all copies of the Program and Documentation. This license automatically terminates if the User fails to comply with its terms and conditions. User agrees that, upon such termination, User will destroy (or permanently erase) all copies of the Program and Documentation.
8. DISCLAIMER OF WARRANTY: CYBERLYNK AND ITS LICENSORS AND AUTHORIZED DISTRIBUTORS PROVIDE THE PROGRAM AND THE DOCUMENTATION TO USER “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, OR FITNESS FOR A PARTICULAR PURPOSE. CyberLynk does not warrant that the Program is error-free, nor that its operation will be uninterrupted, nor that any or all defects will be corrected. Should the Program prove defective, User and not CyberLynk, or its authorized distributor and its licensors, assumes the entire cost of any service and repair. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CyberLynk OR A CyberLynk AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to User.
10. LIMITATION OF REMEDIES: IN NO EVENT WILL CYBERLYNK OR ITS DISTRIBUTORS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF USER USE OR INABILITY TO USE THE PROGRAM INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM, EVEN IF CYBERLYNK, ITS LICENSORS OR AN AUTHORIZED CYBERLYNK DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST OR THROUGH USER BY ANY OTHER PARTY.
11. Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to the User. In no event shall CyberLynk’s or its licensors’ or distributor’s total liability to User for all damages, losses, and causes of action (whether in contract, tort (including negligence) or otherwise) exceed the amount paid by your company for the Program.
12. This license will be governed by the laws of the State of Wisconsin as applied to transactions taking place wholly within Wisconsin between Wisconsin residents. If for any reason a court of competent jurisdiction finds any provision of this License or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force and effect.
13. EXPORT CONTROLS: The Program and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders; or in any other situation prohibited by U.S. law or regulation. In addition, due to the fact that it contains some encryption technology, it may violate the law of certain jurisdictions to either import, download or use the Programs. By downloading or using the Program, the User is agreeing to the foregoing and User represents and warrants that User is not located in, under the control of, or a national or resident of any such country or on any such list.
14. U.S. GOVERNMENT END USERS: The Program is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), and the corresponding regulations for Department of Defense agencies and NASA, all U.S. Government End Users acquire the Program with only those rights set forth herein. The manufacturer is Wisconsin CyberLynk Network, Inc..,10125 S. 52nd Street, Franklin, WI 53132.
15. Complete Agreement: This License constitutes the entire agreement between the parties with respect to the use of the Program and the related Documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.