TERMS OF USE
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Network Answer Pty Ltd., BY using this service, YOU ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD THE SOFTWARE. IN THE EVENT THAT YOU ESTABLISHED AN ACCOUNT MORE THAN THIRTY (30) DAYS AGO AND DO NOT WISH TO ACCEPT THIS AGREEMENT, PLEASE REFER TO SECTION 10.
1. Establishment of a OffsiteVault Account.
A. You may establish one (1) user account (the "Account") with which to use the Backup Service by accessing the Service pursuant to the terms, conditions and restrictions contained in this Agreement. In order to establish an Account, you must be a 'Natural Person,' who is the age of majority in the country where you are a citizen. You may not share the Account with anyone, except that if you are a parent or guardian, you may permit one (1) minor child to use the Account when not in use by you. You are liable for all uses of the Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall forever be owned by Network Answer Pty Ltd.
B. To register an Account to use the Backup Service, you will be required to provide Network Answer Pty Ltd. with: (i) your name, address and phone number; (ii) Your Email address; (iii) accurate, complete, and updated billing information for payment of the Service subscription fee. Failure to comply with the foregoing or to update the foregoing if your contact information or billing information changes shall constitute a breach of this Agreement, which may result in the immediate termination and deletion of the Account. As such, it is imperative that you provide Network Answer Pty Ltd. with accurate, up to date information. In the event that Network Answer Pty Ltd. learns that you have provided false or misleading registration information, Network Answer Pty Ltd. reserves the right to immediately terminate and disable or delete the Account.
C. You hereby agree to pay all charges incurred by the Account, including applicable taxes, in accordance with billing terms for access to the Service that are in effect at the time that the fee or charge becomes payable. Your right to access to the Service is subject to any limits established by Network Answer Pty Ltd. or by your credit card issuer, billing service, or other payment methods authorized by Network Answer Pty Ltd.. Network Answer Pty Ltd. may, in its sole and absolute discretion, suspend or terminate your access to the Service and disable or delete the Account, if: (i) payment cannot be charged to your credit card; (ii) your charge is returned to Network Answer Pty Ltd. for any reason; (iii) or you are paying by cash or direct debit and you fail to pay the monthly subscription fee for the upcoming month. If you have a balance due on the Account, you agree that Network Answer Pty Ltd. can charge these unpaid fees to your credit card or debit them from your debit card, as applicable. You agree to reimburse Network Answer Pty Ltd. for all costs and expenses incurred by Network Answer Pty Ltd. in collecting payment due hereunder, including without limitation all bank or service charges, and any reasonable attorneys' fees.
D. During the registration process, you will be required to select a user name and a password that are specific to the Account (collectively referred to hereunder as "Password"). Your Password is to be kept confidential at all times and you are solely responsible for the security of your Password. You may not disclose your Password to anyone, or allow your Password to be used by anyone other than yourself and/or your one (1) minor child. Network Answer Pty Ltd. is not responsible for any harm that may result to the Account (including without limitation the deletion or modification of data in the Account) as a result of a lost or shared password.
E. Network Answer Pty Ltd. does not recognize the transfer of Accounts, and any authorized transfer of the backup software will result in the permanent deletion of the Account attached to that software. You may not offer any Account for sale or trade, and any such offer is a violation of this Agreement and may result in suspension or termination of the Account.
F. There are no refunds where the Account is terminated prior to the end of a subscription period; the Service will be available for your use until such time that the then-current subscription period expires.
2. Limitations on Your Use of the Service and/or Software.
Your license to use the Service and/or Software is limited by this Terms of Use and the Network Answer Pty Ltd. End User License Agreement which you were required to accept when you installed the Backup Software. Limitations on your right to use the Service and/or Software may include, but not necessarily be limited to, the following:
A. Network Answer Pty Ltd. expressly reserves the exclusive right to create derivative works based on the Service and/or Software. This means that you may not create derivative works based on the Service and/or Software, without the prior express, written permission of Network Answer Pty Ltd..
D. You may not institute, assist, or become involved in an attack upon any Network Answer server or otherwise attempt to disrupt the Network Answer servers. You may not institute any such attack which results in the disruption of any other user's Service. ANY ATTEMPT BY YOU OR ANY OTHER USER ON AN ACCOUNT TRACEABLE TO YOU TO DAMAGE NETWORK ANSWER OR UNDERMINE THE LEGITIMATE OPERATION OF NETWORK ANSWER IS A VIOLATION OF CRIMINAL AND CIVIL LAWS AND, SHOULD SUCH AN ATTEMPT BE MADE OR ASSISTANCE FOR SUCH AN ATTACK BE PROVIDED, NETWORK ANSWER PTY LTD RESERVES THE RIGHT TO SEEK DAMAGES FROM ANY SUCH USER TO THE FULLEST EXTENT PERMITTED BY LAW. You may not, whether intentionally or unintentionally, violate any applicable local, state, national or international law or regulation in connection with your use of the software or the Service.
3. Account/Password Security.
You are responsible for maintaining the confidentiality of your Password, and you will be responsible for all uses of your Password, whether or not authorized by you. Also, note that the security of the Account is your responsibility. Network Answer Pty Ltd. is not responsible in the event that the Account is "hacked," or if the Account or your computer is damaged by a virus, or for any other issues with your computer or the Account. If you think that the Account has been compromised, please contact Network Answer Pty Ltd. Technical Support, by calling Network Answer Pty Ltd.'s Technical Support phone number, and Network Answer Pty Ltd. will help you reset your Password, assist with billing issues, and offer basic suggestions for improving the Account security. If you report the Account stolen, hacked, or in any other way compromised, Network Answer Pty Ltd. will suspend the Account while the matter is investigated. Following this investigation, Network Answer Pty Ltd. will determine the appropriate course of action in its sole and absolute discretion.
4. Consequences of Violating the Network Answer Pty Ltd. Code of Conduct.
Network Answer Pty Ltd. may, in its sole and absolute discretion, take whatever action it deems necessary to preserve the integrity of Network Answer Pty Ltd.. Violation of any of the terms and conditions set forth above may result in actions being taken by Network Answer Pty Ltd., effective immediately or at a time determined by Network Answer Pty Ltd., which may include without limitation: (i) temporarily suspending your access to the Backup Service, or (ii) permanently terminating your access to the Backup Service. Without limiting the foregoing, Network Answer Pty Ltd. retains the right to decline service to any user who violates the Backup Service Terms of Use or the End User License Agreement.
5. Online Duration.
Network Answer Pty Ltd. agrees to provide the servers and software necessary to access the Service until such time as the Backup Service is "Out of Publication." Network Answer Pty Ltd. shall be considered "Out of Publication" following the date that the backup Software is no longer distributed by Network Answer Pty Ltd., or its affiliates. Thereafter, Network Answer Pty Ltd. may, in its sole and absolute discretion, continue to provide the Service or license to third parties the right to provide the Service. However, nothing contained herein shall be construed so as to place an obligation upon Network Answer Pty Ltd. to provide the Service beyond the time that the Backup Service is Out of Publication. Neither the Service nor Network Answer Pty Ltd.'s agreement to provide access to the Service shall be considered a rental or lease of time on or capacity of Network Answer Pty Ltd.'s servers or other technology.
6. Our Administration of the Backup Service; Changes to the Terms of This Terms of Use Agreement.
Network Answer Pty Ltd. reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, including, without limitation, access policies, the availability of any Service feature, hours of availability, content, data, software or equipment needed to access the Backup Service, the amount of, or basis for determining, any fees or charges for the Backup Service, and institution of new fees or charges for the Backup Service, effective upon prior notice as follows: Network Answer Pty Ltd. will post notification of any such changes to the OffsiteVault.Net Website and will post any revised Terms of Use in this location, and may provide such other notice as Network Answer Pty Ltd. may elect in its sole and absolute discretion, which may include by email, postal mail, pop-up screen. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you may cease to use your account and terminate the Account. The continued use of the Backup Service by you following notice of changes to this Agreement will mean you accept any and all such changes. Network Answer Pty Ltd. may change, modify, suspend, or discontinue any aspect of the Backup Service at any time. Network Answer Pty Ltd. may also impose limits on certain features or restrict your access to parts or all of the Backup Service without notice or liability. You have no interest, monetary or otherwise, in any feature, content or availability of the Backup Service, any computer Data or in any terms or conditions of access to or use of the Backup Service.
7. Termination.
This Agreement is effective until terminated. Either party may terminate this Agreement immediately by delivering to the other party written notice of such termination or by terminating the Account. In the event that you terminate or breach this Agreement, you will forfeit your right to any and all payments you may have made for pre-purchased access to the Backup Service. You agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on behalf of the Account prior to any termination of this Agreement. Network Answer Pty Ltd. reserves the right to terminate this Agreement without notice, if, in Network Answer Pty Ltd.'s sole and absolute discretion, you fail to comply with any terms contained in these Terms of Use or the OffsiteVault EULA.
8. Acknowledgments.
You hereby acknowledge that:
A. You assume the cost of all telephone and Internet access charges along with all necessary equipment, servicing, repair or correction incurred in maintaining connectivity to Network Answer's servers.
B. Network Answer Pty Ltd. has the right to obtain certain identification information about your computer and its operating system, including the identification numbers of your hard drives, central processing unit, IP addresses and operating systems, for identification purposes without any further notice to you.
C. Network Answer Pty Ltd. has the right to obtain "non-personal" data from your connection to OffsiteVault.Net in order to make certain demographic assumptions regarding the users of the Backup Service without any further notice to you.
D. In order to assist Network Answer Pty Ltd. to police users who may use "hacks," or "cheats" to gain an advantage over other users, you acknowledge that Network Answer Pty Ltd. shall have the right to obtain certain information from your computer and its component parts, including your computer's random access memory, video card, central processing unit, and storage devices. This information will only be used for the purpose of identifying "cheaters," and for no other reason.
E. the Backup Service IS PROVIDED "AS IS" AND Network Answer Pty Ltd. DOES NOT WARRANT THAT the Backup Service WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND Network Answer Pty Ltd. EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO the Backup Service, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF ITS CONDITION, DEFECTS, USE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, AND NON-INFRINGEMENT.
G. NEITHER Network Answer Pty Ltd. NOR ITS PARENT, SUBSIDIARIES, LICENSORS OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OF OR INABILITY TO USE the Backup Service INCLUDING WITHOUT LIMITATION LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES. IN NO EVENT WILL Network Answer Pty Ltd. BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
H. You may not be able to access the Backup Service whenever you want, and there may be extended periods of time where you cannot access the Backup Service.
I. Network Answer Pty Ltd. shall not be held liable for any delay or failure to perform under any circumstances, including without limitation those resulting from causes outside the reasonable control of Network Answer Pty Ltd.; including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Network Answer Pty Ltd.'s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
J. While keeping User Data safe is a priority of Network Answer Pty Ltd., note that Network Answer Pty Ltd. shall not have any liability for the loss of any User Data for any reason whatsoever.
K. Network Answer Pty Ltd. reserves the right, in its sole and absolute discretion, to modify or delete any information, including without limitation User Data and any other information accumulated, stored or uploaded to OffsiteVault.Net;
L. You are entirely liable for all activities conducted through the Account, and are responsible for ensuring that any other person who uses your the Backup Service account is aware of the terms of and complies with this Agreement. In the event that you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of your Password, you will immediately notify Network Answer Pty Ltd. by calling Network Answer Pty Ltd.'s Technical Support number or by e-mailing info@offsitevault.net to report the actual or suspected breach of security.
9. Equitable Remedies.
In the event that you breach this Agreement, you hereby agree that Network Answer Pty Ltd. would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Network Answer Pty Ltd. shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Network Answer Pty Ltd. may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
10. Choice of Laws.
This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, without giving effect to any principles of conflicts of law. Other laws may apply if you access the Service from USA, Canada, or New Zealand, but shall affect this Agreement only to the extent required by such jurisdiction. In such a case, this Agreement shall be interpreted to give maximum effect to the terms and conditions hereof. If you access the Service from New Zealand, The New Zealand Consumer Guarantees Act 1993 ("Act") may apply to the backup software and/or the Service as supplied by Network Answer Pty Ltd. to you. If the Act applies, then notwithstanding any other provision in these Terms of Use, you may have rights or remedies as set out in the Act which may apply in addition to, or, to the extent that they are inconsistent, instead of, the rights or remedies set out in these Terms of Use. Those who choose to access the Service from locations outside of the United States, Canada, Australia, or New Zealand do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable.
I hereby acknowledge that I have read and understand the foregoing Terms of Use Agreement and agree that my use of the backup service is an acknowledgment of my agreement to be bound by the terms and conditions of this Terms of Use Agreement.
(c) 2005 Network Answer Pty Ltd., All rights reserved.
