End User License Agreement and Limited Warranty
Software Copyright ©2001 - 2007 DataFort Corporation.
Documentation Copyright © DataFort Corporation
All rights reserved.
PLEASE READ THIS LICENSE CAREFULLY BEFORE YOU COMMENCE USE OF THE SOFTWARE YOUR RIGHT TO USE THIS SOFTWARE PRODUCT IS SUBJECT TO THE TERMS SET OUT IN THIS LICENSE AGREEMENT. CONTINUING TO USE THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT ACCEPT OR UNDERSTAND THEM, YOU SHOULD DELETE THE SOFTWARE FROM YOUR PC.

1. Definitions
1.1 In this License unless the context otherwise requires:
“Agreement” means these terms and conditions.

"Backup" means the process of transferring Data from your PC to DataFort's Server for storage.

"The Services" means the services offered by DataFort for Data storage.

"DataFort’s Server" means the computer system, owned by DataFort, supplied by an Internet Service Provider or supplied by another third party and used to provide DataFort’s Services, its Web Site and other ancillary functions.

"The PC" means the server, laptop or desktop PC that you use.

"Data" means any programs, data or other information copied, or to be copied from your PC for storage during a Backup.

"The Documentation" means the documentation, in whatever form supplied, on how to use the Software.

"Photograph" means any photograph, including the negative and the positive, and data stored on a computer disc or by other electronic means capable of conversion into a photograph, as determined in the sole discretion of Datafort.

"The Proprietary Software" means the computer programs used by DataFort or an Internet Service Provider.

"Pseudo-photograph" means an image, whether made by computer-graphics or otherwise, which appears to be a photograph, as determined in the sole discretion of Datafort.

“The Service” means the On-Line Backup service as defined in the service level statement.

“The Service Level Statement” means the then current description and level of service statement as maybe amended and posted on the DataFort web site from time to time.

"The Software" means the computer program supplied to enable your Data to be stored on DataFort's Servers.

"The Subscription Fee" means the amount payable for The Services.

"Web Site" means a site at which text, graphics, data, files and information are stored electronically and access to which is made available to organisations and the general public via the Internet.

2 Grant of License
You are not permitted to install or run the Software or use the Documentation that will be supplied to you without the permission of DataFort. DataFort will grant you a License in consideration of your:
2.1 agreement to the following terms and conditions;
2.2 subscription to The Services (your "Subscription"); and
2.3 continuing payment of the Subscription Fee, where appropriate.
3. Permitted Acts by You
You are permitted to do the following:
3.1 load the Software on one PC only which is under your control at all times and use it to store Data;
3.2 use the Software to Backup your PC;
3.3 use the Documentation in connection with the permitted use of the Software;
3.4 transfer the Software from one PC to another provided that the Software is used on only one PC at a time;
3.5 make a backup copy of the Software in support of your permitted use of the Software provided you label the backup copy with DataFort's copyright notice - any other copies of the whole or any part of the Software are prohibited;
3.6 use the Software for your personal use or in your business or profession - permitting unauthorised access to, copying or use of the Software and Documentation is a breach of this Agreement.

4. Prohibited Acts by You
You are prohibited from doing, or allowing others to do, the following:
4.1 using or copying the Software except to the extent permitted by this Agreement or by statute;
4.2 transferring the Software, the Documentation and/or the License to any other individual or entity whether on a permanent or temporary basis. If you transfer possession of any copy of the Software to another person, your License is automatically terminated;
4.3 distributing, renting, loaning, sub-licensing or otherwise dealing in the Software and Documentation;
4.4 altering, adapting, merging, modifying or translating the Software or the Documentation in any way for any purpose, including, without limitation, for error correction except to the extent permitted by statute;
4.5 reverse-engineering, disassembling or de-compiling the Software except that the User may de-compile the Software only to the extent permissible by law where this is indispensable to obtain the information necessary to achieve the inter-operability of an independently created program with the Software or with another program and such information is not readily available from DataFort or elsewhere;
4.6 removing, changing or obscuring any product identification or notices of proprietary rights and restrictions on or in the Software and Documentation;
4.7 using the Services to store Photographs, Pseudo-photographs, films, articles, sound records, messages, or any other material that may be stored in a computer that are determined, at the sole discretion of Datafort, to be indecent or obscene or are otherwise illegal under local, state or federal law; or
4.8 exporting, sending, transmitting or otherwise removing the Software from the country in which you purchased The Service other than on the PC in the normal course of your business.

5. Term and Termination
5.1 The commencement of your service shall take effect on the date hereof. The License will continue in full force and effect until written notice of your termination is received by Datafort.
5.2 Your License to use the Software and Documentation will terminate immediately and automatically if your Subscription is terminated, you fail to make timely payments or if payments made by you are returned for any reason. In the event your License is terminated for any of the above reasons, you will be responsible for any and all of Datafort’s costs (including all legal and administrative costs) associated with the termination of your License and the collection of your account.
5.3 Your License will also terminate immediately and automatically if you fail to comply with any of the terms of this agreement.

5.4 Your License will also terminate without further action or notice by DataFort if an order of relief is entered under the bankruptcy or insolvency laws of any jurisdiction (i) adjudging you or any of your subsidiaries bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization, liquidation, arrangement, adjustment or composition under the bankruptcy or insolvency laws of any jurisdiction (iii) appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar official) for you or any of your properties or subsidiaries or (iv) ordering the winding up or liquidation of your affairs or the affairs of any of your properties or subsidiaries.
5.5 DataFort may terminate your License at any time upon giving you at least one month's notice, such notice to end on the last day of a calendar month.
5.6 Following termination of your License, for whatever reason:
5.6.1 you will destroy the Software and Documentation together with all copies in any form, including copies on your hard and backup disks;
5.6.2 any use of any copies of the Software or Documentation will be unlawful; and
5.6.3 you authorise and consent to DataFort, after 30 days, being able to delete your stored Data without liability for loss or damage.
5.7 Termination by you will only be accepted via email from the customer’s own email domain, through facsimile transmission or through first class U.S. Mail or any other reputable overnight courier that provides proof of delivery. Absolutely no termination instructions will be accepted via telephone and any such requests shall be deemed null and void.
6. Limited Warranty by DataFort
6.1 DataFort warrants to you, as the Licensee, that the Software when used properly, in the correct environment, will provide the functions and facilities and will perform substantially as described in the Documentation.

6.2 DataFort’s entire liability and your exclusive remedy under the warranty, given in 6.1 above, will be, at DataFort’s sole discretion, to either:
6.2.1 repair or replace the Software which does not conform with the warranty; or
6.2.2 terminate the License and refund to you a percentage of the Subscription Fee paid representing unused time.
6.2.3 In no event shall Datafort be liable for any consequential, special, incidental, or punitive damages.

7. Exclusion of Other Warranties by DataFort
7.1 Except for the express warranty in Clause 6, DataFort and its suppliers make and you receive no other warranties, conditions or representations, express or implied, statutory or otherwise, and without limitation the implied terms of merchantability and fitness for purpose are excluded. DataFort does not warrant that the operation of the Software or access to DataFort’s Server or web site will be error free or uninterrupted. It is your responsibility to ensure that the Software is suitable for your needs and the entire risk as to the performance and results of the Software and Documentation is assumed by you.
7.2 In particular, DataFort does not warrant that you will be able to restore data after using the Software. The warranties with regard to this Software are confined to section 6.1 above and do not extend to your being able to restore from the backed up data. You agree this is a reasonable limitation of warranty given that you have the daily control of activity using the Software and you have the ability to make daily checks that it is functioning to your individual (over which we have no control) requirements.

8. Warranties and indemnities by the Licensee
8.1 You acknowledge that software in general is not error-free and agree that the existence of such errors shall not constitute a breach of this License.
8.2 You acknowledge that the Software was not designed and produced specifically your requirements and that you were solely responsible for its selection after you conducted appropriate and comprehensive due diligence. Datafort makes no warranty of the suitability of the software for your specific needs or hardware configuration.
8.3 You warrant to DataFort that you will follow instructions and guidance in any software manual or accompanying papers. Any misuse or unapproved use of the software, including exceeding your service limit, shall immediately revoke your License and void all warranties from Datafort to you. In the event you reach your service limit, you agree to strictly and immediately follow the instructions given to you by the Software. If you do not follow the instructions your Backup will not resume.
8.5 You hereby undertake to DataFort that you will, without prejudice to any other right of action which DataFort may have, at all times keep DataFort fully and effectively indemnified against all and any liability (which liability shall include, without limitation, all losses, costs, claims, expenses, demands, actions, damages, legal and other professional fees and expenses on a full indemnity basis) which DataFort may suffer or incur as a result of, or by reason of, any breach or non-fulfilment of any of your obligations including your warranties in respect of this License or in respect of any legal action which may be brought in any way connected to this Agreement whether by you, DataFort or any other party.

9. Disclaimer
9.1 In no event will DataFort be liable for any direct, indirect, consequential, special, incidental, or punitive damages or loss of any kind (including without limitation loss of profits, loss of contracts, business interruptions, inability to restore data, loss of or corruption to data) however caused and whether arising under contract, tort, including negligence, or otherwise except that required by (or not allowed to be excluded by) law.
9.2 If any exclusion, disclaimer or other provision contained in this Agreement is held invalid for any reason and DataFort becomes liable for loss or damage that could not otherwise be limited, such liability, whether in contract, negligence or otherwise, will not exceed the amount actually paid by you for the Service.
9.3 DataFort does not exclude or limit liability for:
9.3.1 death or personal injury resulting from an act or negligence of DataFort; or
9.3.2 damage caused by a defect in the Software.
9.4 You acknowledge that the allocation of risk in this Agreement reflects the price paid for the Software and also that it is not within DataFort's control how and for what purposes the Software and the Service are used by you and that DataFort has no knowledge of the data you intend to use the Software for, its value or use.

10. Entire Agreement
10.1 This Agreement constitutes the entire agreement between the parties and with the exception of any fraudulent misrepresentations, supersedes all prior oral or written agreements, understandings or arrangements between them relating to the subject matter of this Agreement.

11. Severability
If any term or provision of this Agreement, as applied to either party or any circumstance, for any reason shall be declared by a court of competent jurisdiction to be invalid, illegal, unenforceable, inoperative or otherwise ineffective, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The parties hereby agree to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.

12. Waiver
The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have here under operate as a waiver of any breach or default by the other party.

13. Notices
Any notice, request, instruction or other document to be given under the Terms and Conditions shall be delivered or sent by first class U.S. mail or any other reputable overnight courier that provides proof of delivery, email or by facsimile transmission (such facsimile transmission notice to be confirmed by letter mailed within 12 hours) to the address, email address or to the facsimile number of the other party set out in this agreement or such other addresses or numbers as may the other party shall deem via written notice.

Any notices to Datafort shall be sent to:

Use the Support Request functionality under the help menu to contact DataFort about any issues. That contact will be date stamped.

14. Headings
Headings to clauses in this agreement are for the purpose of information and identification only and shall not be construed as forming part of this agreement.

15. Independent Contractor.
Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of employer and employee or principal and agent between the parties.

16. Law.
This Agreement, and its validity, construction and effect, shall be governed by and enforced in accordance with the internal laws of the State of New York (without reference to the conflicts of laws provisions therein and the federal laws of the United States). The parties consent to the exclusive jurisdiction of any state or federal court empowered to enforce this Agreement located in the Southern District of New York and waives any objection thereto on the basis of personal jurisdiction or venue.

17. Payment
All payments for the Services, including any upgrading of your level of Services, must be paid in advance. No refunds will be issued after your initial 30 day trial period. If you decide to upgrade your level of service, you will be charged in advance on a pro-rata basis for the additional fees. Unless Datafort receives written notice of your desire not to renew your account, your account will be automatically renewed and your credit card on file with Datafort will be charged for your renewal fee fourteen (14) days before the end of your current term. If Datafort is unable to charge your credit card by the end of your current term, your account will be cancelled and your access to your data will be suspended. Subject to our right to strictly enforce our rights in Section 5.2 above, accounts that fall into arrears and are suspended will no longer be able to make use of the Services including the automatic backup process . All data will be permanently deleted from Datafort’s servers within 30 days of the cancellation of your account. A suspended account will continue to accrue storage charges. A $10.00 reconnection fee may be charged per account to reactivate after suspension. If the account is sent to a third party collection agency, any and all fees associated with recovering the past due balance (including all legal and administrative fees) will be paid by you. All such fees will added to the sum of the past due balance and immediately due.