END USER LICENSE AGREEMENT
IMPORTANT: THE LEGAL AGREEMENTS SET FORTH BELOW WILL GOVERN YOUR USE OF PC BACKUP PRO (“the Software”), WHICH IS OFFERED BY SAFECARE SOFTWARE LIMITED AND/OR ITS SUBSIDIARIES (“SAFECARE SOFTWARE”). PLEASE READ ALL OF THE TERMS AND CONDITIONS OF THIS LEGAL AGREEMENT. SAFECARE SOFTWARE IS PLEASED TO LICENSE PC BACKUP PRO TO YOU AS THE INDIVIDUAL, COMPANY, OR OTHER LEGAL ENTITY THAT WILL BE UTILIZING PC BACKUP PRO (REFERRED TO BELOW AS “YOU” OR “YOUR”) ON THE EXPRESS CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND SAFECARE SOFTWARE. BY CLICKING “AGREE” OR “YES” YOU INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OUTLINED IN THIS AGREEMENT. ALSO, BY DOWNLOADING PC BACKUP PRO, INSTALLING PC BACKUP PRO, ACCESSING PC BACKUP PRO ONLINE, OR, IF APPLICABLE, BREAKING THE SEAL OF THE TANGIBLE MEDIA CONTAINING PC BACKUP PRO, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE” AND DO NOT DOWNLOAD, INSTALL OR USE PC BACKUP PRO.
1.1 PC BACKUP PRO is the property of SAFECARE SOFTWARE or its licensees and is protected by copyright law. The content and information made available through PC BACKUP PRO is licensed, not sold, to you. While SAFECARE SOFTWARE continues to own the intellectual property rights to, you will have certain rights to use PC BACKUP PRO after your acceptance of this license. This license governs any releases, revisions, or enhancements to the Software that SAFECARE SOFTWARE may furnish.
1.2 Except as may be modified by a SAFECARE SOFTWARE license certificate, license coupon, or license key (collectively, “License Key”) that accompanies, precedes, or follows this license, your rights and obligations with respect to the use of PC BACKUP PRO are as follows:
You are entitled to: A. use PC BACKUP PRO on or in conjunction with up to (i) the number of computers specified by your order for PC BACKUP PRO, or (ii) in the case of software purchased on a CD or other physical medium, the number specified on PC BACKUP PRO package, or (iii) if you received PC BACKUP PRO in combination with other hardware or software, solely in conjunction with such other hardware or software; B. transfer PC BACKUP PRO on a permanent basis to another person or entity, provided that you first notify SAFECARE SOFTWARE of your intention in writing and that you retain no copies of the Software and the transferee agrees to the terms of this license.
1.3 Notwithstanding Section 1.2 above, if a License Key accompanies, precedes, or follows this license, you may:
make the number of copies of PC BACKUP PRO licensed to you by SAFECARE SOFTWARE as provided in your License Key. Your License Key shall constitute proof of your right to make such copies;
make one copy of PC BACKUP PRO for backup purposes, or copy PC BACKUP PRO onto the hard disk of your computer and retain the original for backup purposes.
use PC BACKUP PRO on a network if you have a licensed copy of PC BACKUP PRO for each computer that can access PC BACKUP PRO over that network; or
use PC BACKUP PRO on the same computer to create an image file of a hard drive on that computer and store the image file on removable media for disaster recovery purposes;
use the Software to create a boot disk for reapplying the hard drive image that was created for disaster recovery purposes to the hard drive on that same computer; and
use PC BACKUP PRO to clone a hard drive from that same computer to a replacement computer, and to use PC BACKUP PRO on the replacement computer, provided that the Software has been removed from the original computer.
1.4 You may not:
modify PC BACKUP PRO for use for or on behalf of any third-party not contracting directly with SAFECARE SOFTWARE, or use PC BACKUP PRO in any way not authorized by this license;
copy the printed documentation which accompanies PC BACKUP PRO;
rent, lease, lend, sell, transfer, redistribute, or sublicense PC BACKUP PRO or any portion of PC BACKUP PRO;
decompile, copy, reverse-engineer, disassemble, modify, translate, create derivative works of the product, or make any attempt to discover the source code of PC BACKUP PRO, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of SAFECARE SOFTWARE. If you breach this restriction, you may be subject to a civil complaint for damages or other legal or equitable relief. The terms of this license will govern any product updates provided by SAFECARE SOFTWARE that replace and/or supplement the original product, unless such an update is accompanied by a separate license, in which case the terms of that license will govern.
use a previous version or copy of PC BACKUP PRO after you have received a disk replacement set or an upgraded version; upon upgrading PC BACKUP PRO, all copies of the prior version must be destroyed;
use a later version of PC BACKUP PRO than is provided herewith unless you have purchased upgrade insurance or have otherwise separately acquired the right to use such later version; or
use PC BACKUP PRO for the purpose of creating multiple computers or hard drives not connected to the original computer, with similar or identical configurations to that of the original computer or hard drive.
1. Subscription Period
The initial term of this Agreement will commence on the date you download or otherwise acquire PC BACKUP PRO, and is limited to: (i) the subscription period specified in your order for PC BACKUP PRO, or (ii) the subscription period listed on PC BACKUP PRO package if you purchased PC BACKUP PRO on CD or other physical medium, or (iii) the subscription period specified by your supplier if you received PC BACKUP PRO in combination with other hardware or software You may have the option to renew of extend or your subscription. If renewal is available, SAFECARE SOFTWARE will provide notice offering you the opportunity to purchase renewals at the then-current renewal price. The initial term and any renewals purchased are referred to in this Agreement as the “Subscription Period”. 2.2. Termination SAFECARE SOFTWARE shall be entitled to terminate this Agreement at any time without notice if you commit a material breach of this Agreement. 2.3. Effect of Termination On the expiration or termination of this Agreement, you shall cease to use PC BACKUP PRO and destroy all copies, full or partial, of the product in your possession or your control. SAFECARE SOFTWARE may cease making updates available to you, and after expiration of your subscription, most features of the service and software will stop running and performing effectively, or may cease functioning completely. Sections 1.4, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 will survive the expiration or termination of this Agreement.
SAFECARE SOFTWARE reserves all rights in PC BACKUP PRO not expressly granted by this agreement. The delivery of our software to you does not transfer to you any commercial or promotional use rights of the products. Any forwarding or exporting capabilities are solely an accommodation to you and shall not constitute a grant, waiver, or other limitation of any SAFECARE SOFTWARE’s copyright rights. All copyrights, trademarks and other conceivable intellectual property rights in and to the Software are owned by SAFECARE SOFTWARE or its licensors, and are protected by Costa Rica and foreign copyright laws, international treaties and other applicable laws. Any copy of the Software you are allowed to make pursuant to this Agreement must contain the entire copyright and other notices included with the original copy of the Software.
4. Content Updates
You acknowledge that certain SAFECARE SOFTWARE software products utilize content that is updated from time to time. For example, PC BACKUP PRO utilizes updated computer components, drivers and file versions, and/or updated BIOS versions; and content delivery features utilize updated URL links, etc. (collectively, “Content Updates”). You may obtain Content Updates for any period for which you have (i) purchased a subscription for Content Updates for the Software (including any subscription included with your original purchase of the Software), (ii) purchased upgrade insurance for the Software, (iii) entered into a maintenance agreement that includes Content Updates, or (iv) otherwise separately acquired the right to obtain Content Updates. Except to the extent expressly stated above, this license does not permit you to obtain and use Content Updates. You further acknowledge that you must routinely download and permit installation of Updates in order to obtain maximum benefit from the Software.
SAFECARE SOFTWARE warrants that the media on which the Software is distributed will be free from defects for a period of thirty (30) days from the date of your purchase of PC BACKUP PRO (the “Warranty Period”). Your, or any end user’s sole remedy in the event of a breach of this warranty will be that SAFECARE SOFTWARE will replace any defective media returned to SAFECARE SOFTWARE within the warranty period or, if Section 6 (below) applies, refund the money you paid for the Software. SAFECARE SOFTWARE does not warrant that PC BACKUP PRO will meet your requirements or that operation of PC BACKUP PRO will be uninterrupted or error-free. In order to exercise your rights under this Section 5, you must uninstall and destroy all copies of the Software you may have made (including all archival copies), and (i) if you purchased the Software by download, follow the instructions on the confirmation email you received in connection with the purchase, or (ii) for all other purchases, return the Software in its original package, along with your receipt, to the point of purchase. EXCEPT FOR THE ABOVE THIRTY (30) DAY WARRANTY, SAFECARE SOFTWARE DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR REASON, TITLE, NON-INFRINGEMENT, OR ACCURACY. THE ABOVE THIRTY (30) DAY WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES.
6. Money Back Guarantee
If you are the original licensee of this copy of PC BACKUP PRO and are not completely satisfied with it for any reason, you are entitled to receive a refund of the money you paid for PC BACKUP PRO (less shipping, handling, and any applicable taxes) by notifying SAFECARE SOFTWARE Customer Service or the Dealer in writing at any time during the thirty (30) day period following the date of purchase (the “Guarantee Period”). If you received the Software as a “bundled” product with the purchase of your PC or other computer component, or if you fail to notify SAFECARE SOFTWARE Customer Service or the Dealer within the Guarantee Period, you are not entitled to a refund.
7.1. SAFECARE SOFTWARE may deliver any notice to you via pop-up window, dialog box, email or any other means, even though you may not receive the notice unless and until you launch PC BACKUP PRO. Any such notice will be deemed delivered on the date SAFECARE SOFTWARE first makes it available through PC BACKUP PRO, irrespective of when you actually receive it.
8.Disclaimer of Damages EXCEPT AS EXPRESSLY PROVIDED BY SECTION 5 OF THIS AGREEMENT, SAFECARE SOFTWARE DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTY OF NON-INFRINGEMENT. SAFECARE SOFTWARE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow limitations on an implied warranty, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
9. Limitation of Liability
9.1. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE BELOW LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY:
(A) TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SAFECARE SOFTWARE OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT OR IN RELIANCE UPON ANY SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF SAFECARE SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) IN NO EVENT WILL SAFECARE SOFTWARE OR ITS LICENSORS HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU WHATSOEVER FOR ANY DEFECT, MALFUNCTION, DAMAGE, OR LOSS, RESULTING FROM YOUR INSTALLATION OR USE OF THIRD PARTY SOFTWARE, HARDWARE, EQUIPMENT, PERIPHERALS, OR OTHER PRODUCTS, INCLUDING BUT NOT LIMITED TO, CONTENT UPDATES, DRIVERS OR OTHER FILES RECEIVED FROM ANY THIRD PARTY (COLLECTIVELY, “THIRD PARTY PRODUCTS”), RECEIVED IN CONNECTION WITH YOUR (OR ANY THIRD PARTY’S) USE OF THE SOFTWARE. ALL WARRANTIES AND OBLIGATIONS OF THIRD PARTIES IN CONNECTION WITH THIRD PARTY PRODUCTS ARE OUTSIDE THE SCOPE OF THIS AGREEMENT AND MUST BE ADDRESSED UNDER A SEPARATE AGREEMENT BETWEEN YOU AND SUCH THIRD PARTIES.
(C) IN NO EVENT WILL SAFECARE SOFTWARE’s OR ITS LICENSORS’ TOTAL LIABILITY FOR ALL DAMAGES EXCEED COST OF THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE PRODUCT FAILS OF ITS ESSENTIAL PURPOSE.
11. ARBITRATION AND WAIVER OF CLASS ACTION CLAIMS. YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND COMPANY, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A CALIFORNIA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”).
The following procedures shall apply: 1) Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth below. 2) In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall take place in San Jose, Costa Rica, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses). 3) Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement.
You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the PC BACKUP PRO.
13. Government Users
If PC BACKUP PRO is downloaded or accessed by or on behalf of the government of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with Restricted Rights. Use, duplication, or disclosure of the Software by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252-227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
14. Export Control
The software and the underlying information and technology may not be downloaded, accessed or otherwise exported or re-exported except as authorized by Costa Rica laws and the laws of the jurisdiction in which the Software was obtained. In particular, the Software may not be exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Syria or any other 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 Deny Orders. By downloading, accessing or using the Software, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
15.1 This agreement is governed by the laws of Costa Rica, and the relevant courts of the Costa Rica have exclusive jurisdiction over any dispute arising out of your use of the Software.
15.2 This Agreement was originally prepared in the English language. Although SAFECARE SOFTWARE may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.
15.3 Assignment. You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
15.4 Severability. In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it. If two or more provisions of this Agreement are deemed to conflict with each other’s operation, SAFECARE SOFTWARE shall have the sole right to elect which provision remains in force.
15.5 Non-Waiver. We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
15.6 Applicable Law. You acknowledge that the Content contained in the Site and software is controlled in and originates from Costa Rica. We do not have any responsibility for any access to this Site and software from territories where the Content may be illegal or otherwise prohibited. If you choose to access our website and software from other locations, you do so at your own risk and are responsible for compliance with applicable local laws, as well as the terms of this Agreement. Any claim relating to the use of PC BACKUP PRO, this Agreement, and any Content displayed on our website and software, shall be governed by the internal substantive laws of Costa Rica, without regard to its conflicts of laws rules. You expressly consent to the jurisdiction of the state and federal courts located in San Jose, Costa Rica for any such claim. You further agree that in the event of any litigation or arbitration proceeding to interpret or enforce a party’s rights under this Agreement, the court or arbitration panel shall have the right and duty, in addition to awarding any relief deemed appropriate in the circumstances, to award the prevailing party its reasonable attorney’s fees, costs, and litigation expenses, incurred in prosecuting or defending such action or proceeding, at trial, at any arbitration proceeding, on appeal, or in any proceeding to enforce any final judgment or arbitration award.
15.7 Changes to Agreement. SAFECARE SOFTWARE may, from time to time, amend this Agreement, in whole or part, at our discretion. Any changes will be effective immediately upon the posting of the revised Agreement. By continuing to use our website, software and Services following any changes, you will be deemed to have agreed to such changes. You acknowledge and agree that it is your responsibility to review this Agreement periodically and become aware of modifications.
15.8 Termination. If you fail, or SAFECARE SOFTWARE suspects that you have failed, to comply with any of the provisions of this Agreement, we, at our sole discretion, without notice to you may: (i) terminate this Agreement, and you will remain liable for all amounts due up to and including the date of termination; and/or (ii) terminate the license to all product(s).
15.9 This agreement constitutes the entire agreement between you and SAFECARE SOFTWARE with respect to this transaction and any prior statements or representations. Any changes to this agreement must be made in writing, signed by an authorized representative of SAFECARE SOFTWARE.
-SAFECARE SOFTWARE Limited