END USER LICENSE AGREEMENT
NOTICE TO ALL USERS: BEFORE YOU CLICK ON THE ACCEPT BUTTON AT THE END OF THIS AGREEMENT, CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT ("AGREEMENT") WHICH SETS FORTH TERMS FOR THE USE OF THE SOFTWARE AND THE CANCELLATION OF SERVICES PROVIDED TO YOU BY ZSTORAGE. YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE FOLLOWING LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THE AGREEMENT, CLICK THE "DO NOT ACCEPT" BUTTON AND DO NOT USE THE SOFTWARE. NOTE: BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE PRODUCT (DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
DUE TO THE NATURE OF BACKUP SERVICE, IT IS RECOMMENDED THAT YOU PERFORM OCCASIONAL TEST RESTORES AND FAMILIARIZE YOURSELF WITH THE OPERATION OF THE SOFTWARE BEFORE AN EMERGENCY SITUATION ARISES.
GRANT OF LICENSE FOR NON-COMMERCIAL USE.
Subject to the terms of this Agreement, zStorage grants to you, the user, a personal, non-exclusive, non-sublicensable and non-commercial limited license to install and use the enclosed zStorage software program (the "Software") and related information, materials and documentation (the "Documentation") on one computer only. Non-commercial means that THE you cannot charge other people to use the Software, nor may you charge them for work you do on their behalf if it involves use of the Software. This license authorizes you to make one copy of the Software solely for backup or archival purposes, provided that the copy you make contains all the proprietary notices.
You may not rent, lease, subdivide, modify, translate or sublicense the Software or Documentation. You may only use the Software and Documentation in connection with zStorage's automatic backup network and not with any other backup or related service. You may not (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any of Licensor's source code, underlying ideas, algorithms, trade secrets or other proprietary information by any means whatsoever, (ii) create derivative works from or otherwise modify this Software, or (iii) copy or otherwise reproduce the Documentation. YOU MAY NOT RESELL THE SOFTWARE OR TRANSFER FOR VALUE.
The Software is owned by zStorage and its structure, organization and code are the valuable trade secrets of zStorage and are protected by United States Copyright and other laws, international treaty provisions and applicable laws, including intellectual property, of the country in which it is being used. The Software and Documentation are licensed and not sold to you. Except as licensed in this Agreement, zStorage retains all right, title and interest in and to the Software and Documentation worldwide.
TERM AND TERMINATION.
This Agreement is effective for the period of services purchased by you. You may terminate this Agreement at any time and without cause by returning or destroying all copies of the Software and Documentation and zStorage shall not be obligated to refund any monies paid. Your rights under this Agreement will terminate automatically without notice from zStorage if you fail to comply with any term(s) of this Agreement. THERE ARE ADDITIONAL TERMINATION PROVISIONS SET FORTH BELOW WHICH AFFECT YOUR RIGHTS AND ABILITY TO OBTAIN A COPY OF YOUR DATA. PLEASE READ THEM.
If Licensee is a unit or agency of the government, or acquiring the Software with government funds, the Software and Documentation are provided subject to zStorage's standard commercial license; provided, however, that for any contracts with non-defense agencies subject to the FAR, the government shall also have the rights set forth in subparagraph (c) of FAR 52.227-19, "Commercial Computer Software - restricted Rights," as applicable.
You acknowledge there are specific restrictions and complex laws regarding the export of software outside the United States, and You agree not to export, or allow the re-export of the Software, Documentation, or any direct product thereof except with all necessary export licenses and approvals. Specific export controls prohibit the software from being downloaded or exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nations or the United States Commerce Department's Table of Denial Orders. By restoring or using the Software, you are agreeing to the foregoing provisions and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list.
If the Software is labeled as an upgrade, you must be properly licensed to use a product identified by zStorage as being eligible for the upgrade. An upgrade replaces and or supplements (sometimes disables) the product that formed the basis for your eligibility for an upgrade. You may use the upgraded Software only in accordance with the terms of this Agreement.
zStorage will use reasonable efforts to prevent the unauthorized disclosure of your confidential information and data. zStorage will not seek to decrypt your data. zStorage, however, will not be responsible for any matter beyond its reasonable control, including, without limitation, unauthorized electronic access of your confidential information or data. In the event that zStorage is served a subpoena or is otherwise legally compelled to provide access to your data, zStorage will provide you with notice of the same as soon as practical to enable you to take action you deem necessary to prevent any such access.
CONTROLLING LAW AND SEVERABILITY.
This Agreement shall be governed by the laws of the United States and the State of Minnesota without regard to conflicts of laws provisions thereof. If any provision of this Agreement, or portion thereof, is held to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
ZSTORAGE WARRANTS THE MEDIA ON WHICH THE SOFTWARE IS RECORDED TO BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF DELIVERY. OTHERWISE, ZSTORAGE'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE REPLACEMENT OF DEFECTIVE MEDIA.
NO OTHER WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS." ZSTORAGE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THIS LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT, INCLUDING NEGLIGENCE, SHALL ZSTORAGE, AND ITS SUPPLIERS, BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) OR ANY OTHER DAMAGES OR LOSSES ARISING OUT OF THE USE OF OR INABILITY TO USE THIS PRODUCT, EVEN IF ZSTORAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE AND UNDERSTAND THAT IN NO EVENT SHALL ZSTORAGE'S TOTAL LIABILITY TO YOU EXCEED THE LIST PRICE ZSTORAGE CHARGES YOU FOR A LICENSE TO THE SOFTWARE EVEN IF ZSTORAGE SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORECEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
zStorage shall not be liable for nonperformance, delay, errors, data loss or other loss caused by any event reasonably beyond zStorage's control including, but not limited to acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect to the Software and Documentation and supersedes all prior or contemporaneous understandings regarding this subject matter. No amendment to or modification of this Agreement shall be effective unless in writing and signed by both parties.
TERMINATION OF THE LICENSE AGREEMENT.
THIS AGREEMENT AND THE FOLLOWING PROVISIONS GOVERN WHAT HAPPENS TO YOUR DATA ON TERMINATION OF THE LICENSE AGREEMENT. THE TERM "DATA" REFERS TO YOUR COMPUTER FILES THAT ARE STORED AWAY FROM YOUR COMPUTER BY ZSTORAGE UNDER THE TERMS OF THIS LICENSE AGREEMENT.
DISPOSITION OF DATA ON TERMINATION.
The services provided to You by zStorage may be terminated under Section 4 above. You understand that all data stored by zStorage under this Agreement shall be deleted on or after One Hundred and Eighty (180) days from the termination date of the agreement (the "Termination Period"). You must inform us in writing (email to: email@example.com or by regular mail to the address listed below) prior to the expiration of the Termination Period if You wish to (A) receive a copy of Your stored data ("data copy"), OR (B) HAVE zStorage IMMEDIATELY DELETE ALL STORED DATA WHEREUPON SUCH DATA WILL NO LONGER BE ACCESSIBLE TO YOU AND zStorage. Fees required to obtain copies of Your stored Data are described in this Agreement. Your Data may be kept confidential at all times subject to the terms of this Agreement and the License Agreement. If zStorage does not receive a written request for a data copy in writing to the address listed below under "customer contact information," You acknowledge and understand that zStorage will destroy all of Your data files immediately on the expiration of the Termination Period with no liability to You whatsoever. By using the Software you are agreeing to release zStorage from any and all liability, claims and damages due to lost or stolen data whether or not You request a data copy.
Each Data Copy stored on a readable CD or floppy disk is $25.00 per copy. Online Data restoration is free.
LIMITATION OF LIABILITY FOR DESTRUCTION OF DATA AFTER TERMINATION.
EXCEPT AS PROVIDED HEREIN, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ZSTORAGE OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER LOSS AND DAMAGES FOR THE DESTRUCTION OF DATA UNDER THIS AGREEMENT. IN NO EVENT WILL ZSTORAGE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LIST PRICE ZSTORAGE OR ITS DISTRIBUTORS CHARGE FOR A LICENSE TO THE SOFTWARE, EVEN IF ZSTORAGE SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
This Agreement is governed by the laws of the United States and the State of Minnesota, without reference to the conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. No provision of this Agreement shall be deemed waived unless such waiver shall be in writing and signed by zStorage or a duly authorized representative of zStorage. You may not assign the benefits of this Agreement to any other party. CUSTOMER CONTACT INFORMATION.
To request a Data Copy, please contact zStorage Customer Care Center in writing by electronic-mail at firstname.lastname@example.org, or by U.S. Mail to zStorage, 12450 Wayzata Blvd., Suite 121, Minnetonka, MN 55305