VEMBU CLOUD SOFTWARE LICENSE AND SERVICE SUBSCRIPTION AGREEMENT
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE INSTALLING THE ACCOMPANYING SOFTWARE. BY INSTALLING AND USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE and PROMPTLY RETURN THE SOFTWARE AND ALL RELATED DOCUMENTATION TO THE PLACE OF ACQUISITION FOR A REFUND OR IF YOU DOWNLOADED THE SOFTWARE, REFRAIN FROM INSTALLING THE SAME AND DELETE ALL DOWNLOADED FILES RELATED TO THE SOFTWARE FROM YOUR SYSTEM.
If you are an individual or a juristic person and want to have the right and ability to electronically transmit and store computer data on a computer location made available to you by us and to retrieve the said data as required from time to time (collectively, the "Services"), you have to acquire a license to use the the Software and subscribe to the Services. This Online Backup Software License and Service Subscription Agreement ("Part 1 of the Agreement") lays down the terms and conditions upon which you may obtain a license to the Software and use the Services.
1.Grant of License for Evaluation
If you want to evaluate the Services, you may install the evaluation version of the Software and access and evaluate the Services. Subject to the terms and conditions of this Part 1 of the Agreement, you are granted a non-exclusive, non-transferable and limited right to use the evaluation version of the Software in object code, for trial and evaluation of the performance of the Software. The license to use the Service for evaluation purposes is valid for a period of thirty (30) days from the date of installation of the evaluation version of the Software ("Evaluation Period") and no charges are payable for use of the Services during this Evaluation Period. If you want to use the Services beyond the Evaluation Period, you have to subscribe to the Services in accordance with the terms of this Part 1 of the Agreement. If you do not so subscribe to the Services, you should stop using the Software and / or its functionality on the expiry of the Evaluation Period and delete all the copies of the Software in your computer/s. Subsequent downloads of the evaluation version of the Software by or for you does not extend, renew or otherwise restart the term of the license to use the Service beyond the Evaluation Period. If you do not subscribe to the Services on expiry of the Evaluation Period, we reserve the right to deny you the right to use the Services.
2.Grant of License For Services
Subject to your acceptance of and compliance with this Part 1 of the Agreement and the receipt of payment due for the Services as mentioned in Part 2 of this Agreement, you are hereby granted a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Part 1 of the Agreement.
If you want to avail of the Services, you are hereby granted a limited, non-exclusive, non-transferable license to download, install and use the Software (in object code) on computer/s owned or controlled by you for the sole purpose of availing of the Services for your internal purposes alone, subject always to the terms of this Part 1 of the Agreement.
3.Ownership of the Software
The Software is not sold to you. You are merely granted a license to use the Software during the Term (as defined below) in accordance with the terms of this Part 1 of the Agreement to avail of the Services. All rights (including all title and intellectual property rights) not specifically granted to you by this Part 1 of the Agreement are reserved to the owners thereof.
You are not to remove or attempt to alter any copyright, trademark or other proprietary notices from any part of the Services including the Software or its copies.
4.Amazon Services and Agreement
To use the Services, cloud computing infrastructure and services provided by Amazon Web Services is used. Your use of the Services is therefore subject not only to the terms of this Part 1 of the Agreement but also by the Amazon Web Services Customer Agreement available at http://aws.amazon.com/agreement/. Therefore, we recommend that you read the Amazon Web Services Customer Agreement carefully. By accepting this Part 1 of the Agreement, you shall be deemed to have accepted the terms of the said Amazon Web Services Customer Agreement as well. Notwithstanding anything contained herein, neither we nor the owners of the Software will have any liability to you or any third party for any interruption, disruption, unavailability or termination of the Services on account of any Service Suspensions (as defined in the Amazon Web Services Customer Agreement) or the termination or suspension of the services provided to us by Amazon Web Services. Also, note that Amazon is not in anyway endorsing the Services or the Software offered under this Part 1 of the Agreement.
5.Restrictions on Use
You may install or use the Software only on such number of machines for which you have obtained licenses. You may not use the Software or avail of the Services beyond the period for which you have obtained a license. You shall not nor shall you permit any other to transmit all or any portion of the Software through any network or communication line. The rights granted to you under this Part 1 of the Agreement are personal to you and the Services may be used only by your employees, agents or others specifically authorized by you to back-up your data and you may not sub-license or transfer in any manner whatsoever any of your rights under this Part 1 of the Agreement or allow any third party's data to be backed-up using the Software. You may not modify any portion of the Software or merge or integrate any portion of the Software into/with any other program. You are not permitted to translate, decompile, disassemble or reverse engineer the Software or do anything to obtain underlying information that is not visible to the user in connection with normal use of the Software. You may not display the Software's object code on any computer screen or make any hardcopy memory dump of the Software's object code. You may not remove, alter or conceal any copyright or other intellectual property notices from any copy of the Software or any of the written materials, if any, accompanying it.
You are permitted to use the Services only for your personal use (if you are an individual) or for your internal business purpose (if you are a juristic purpose) for backing-up your files, data, images, videos or programs etc. (collectively, "your Data") and any other purposes as specifically permitted by us from time to time in accordance with this Part 1 of the Agreement. Use of the Service to back-up any Data that contains any illegal or unlawful content; that is harassing, libelous, slanderous, abusive, threatening, harmful, vulgar, pornographic, obscene or otherwise objectionable; that contains any material could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation; that violates the intellectual property rights of any third party or that contains any viruses, worms, Trojans or any other malicious code, data or material with destructive / contaminating features is strictly prohibited. It is your responsibility to ensure compliance with all applicable laws, rules or regulations including those of the country in which you reside and / or from which you access the Services. You shall not use the Services to access or attempt to access any Data which you are not authorized to use or access. The use of the Services for publishing, communicating to the public or disseminating your Data to any third party is prohibited and you shall not use the Services for any use that may disrupt or negatively affect the Services or the networks through which you access and use the Services. You are permitted to access / use the Services only through the provided or authorized interfaces and protocols. Further, you shall not circumvent or attempt to circumvent any limitations or security features included in the use of the Services.
If it is suspected that you are in violation of any of the above restrictions, we reserve the right to examine the content of your Data. On such examination, if any such violation (in our discretion or the discretion of the owner of the Software), we reserve the right to discontinue the provision of the Services and / or refuse, remove or disable access to any of your Data stored on computers owned, leased or otherwise used by us with immediate effect. Your Data maintained by us may also be subject to examination by law enforcement officials or others authorised by law without your consent or notice to you.
You shall restrict the Data uploaded and downloaded to the following limits:
The amount of data uploaded in a month shall not exceed twice the amount of new data stored in that month; and
The amount of data downloaded in a month shall not exceed twice the amount of data stored in your account.
In the event you exceed the above upload or download limits, the Service Provider / we reserve the right to charge you additionally for the same and in the event of repeated violation of these limits, the right to terminate this Agreement.
To use the Services, you will be required to arrange for all computer and telecommunications equipment, software, services for access to the internet etc. at your own cost.
The transmission, storage and / or retrieval of your Data is subject to a variety of factors beyond our reasonable control particularly given the nature of the internet. Accordingly your use of the Services is at your own risk and we will make commercially reasonable efforts to keep your Data secure. We do not guarantee that it will be successful at doing so.
You shall be solely responsible for protecting the information on your computer systems, for adequate systems security, protection and back-up of your Data including but not limited to installing appropriate anti-virus software, updating your applications, password protecting your computer etc.
For reliable back-up, your cooperation and vigilance is of utmost importance and you are required to mark files for back-up; store them in a location in your computer marked for back-up; make the identified locations for back-up on you computer available and allow your computer to access the Services. You should also verify the logs and the reports of the back-up of your Data periodically to ensure that they are successful and take necessary corrective action if there are errors.
If you back-up your Data beyond the permitted free limit (if any), we shall be entitled to charge you as per its then existing rates.
Notwithstanding anything contained herein, neither we nor the owners of the Software shall not be liable for your failure to fulfill your responsibilities.
While subscribing to the Services, you agree to provide accurate, current and complete information and to keep all such information current, complete and accurate at all times during the term of this Part 1 of the Agreement. You shall be solely responsible for safeguarding the security and confidentiality of the user name and password for your account and will be solely responsible for all actions initiated using your user name and password. If you lose your password, you will not be able to access your data. On becoming aware of any unauthorized use of your user name or password, you must notify us of the same by e-mail with the title "Unauthorised Use of User Name / Password". We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of your Data which you submit or use in connection with your account or the Services.
8.Change to Services
We reserve the right to modify, discontinue, suspend, prohibit use or terminate the Services as a whole or any part thereof, to you or to all or some subscribers at large, with or without notice to you. Other than a pro-rata refund for any prepaid but unused portion of the Services as determined in our sole discretion, we shall not be liable to you or any third party should we exercise this right.
9.Retention / Deletion of Your Data
We do not maintain a secondary copy of your Data that you have backed-up using the Services. Should the Data be lost for any reason whatsoever, we will undertake commercially reasonable efforts to create a replacement back-up from the files stored on your computer. This is the sole remedy you have against us and the owner of the Software for any loss of your Data.
10.Warranty & Disclaimer
WE WARRANT THAT WE ARE ENTITLED TO PROVIDE THE SOFTWARE AND THE SERVICES TO YOU ON THE TERMS CONTAINED HEREIN.
WE WARRANT THAT THE SOFTWARE, WHEN IT IS DELIVERED TO YOU, IS FREE OF VIRUSES, TROJAN HORSES, WORMS AND OTHER SIMILAR DESTRUCTIVE OR DISABLING CODE.
THE ABOVE IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY US AND THE OWNER OF THE SOFTWARE. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND YOUR USE OF THE SOFTWARE AND THE SERVICES IS AT YOUR SOLE RISK.
WE EXPRESSLY DISCLAIM AND YOU HEREBY EXPRESSLY WAIVE ALL OTHER CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS IN THE SOFTWARE OR DEFICIENCIES IN THE SERVICES, IF ANY, WILL BE CORRECTED OR RECTIFIED BY US OR THE OWNER OF THE SOFTWARE.
YOU UNDERSTAND AND AGREE THAT YOUR DATA UPLOADED, DOWNLOADED OR OTHERWISE STORED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION RISK AND COST AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, OR LOSS OF DATA OR UNAUTHORIZED DISCLOSURE OF DATA THAT RESULTS FROM THE UPLOAD, DOWNLOAD OR STORAGE OF SUCH DATA USING THE SERVICES AND UNDER NO CIRCUMSTANCES SHALL WE OR THE OWNER OF THE SOFTWARE BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS, DAMAGE, DELAY, FAILURE, DISRUPTION, DISTURBANCE, INACCURACY, ERRORS, OMISSIONS, DEFECTS OR DEFICIENCIES IN THE SERVICES OR ANY PART THEREOF.
THE ABOVE LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE INSTALLATION, USE OR PERFORMANCE OF THE SOFTWARE AND THE SERVICES. YOU FURTHER AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT THE ALLOCATION OF RISK CONTAINED IN THIS PART 1 OF THE AGREEMENT HAS BEEN TAKEN INTO ACCOUNT AND IS REFLECTED IN THE FEES CHARGED FOR THE PROVISION OF THE SERVICES.
Some jurisdictions do not allow the exclusion of implied warranties. Accordingly, the above exclusion may not apply in certain jurisdictions.
11.Limitation of Liability
NOTWITHSTANDING ANYTHING CONTAINED IN THIS PART 1 OF THE AGREEMENT, UNDER NO CIRCUMSTANCES SHALL WE OR THE OWNER OF THE SOFTWARE BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS OR SAVINGS, BUSINESS INTERRUPTION OR LOSS OF INFORMATION OR DATA) WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE AND / OR SERVICES OR THE BREACH OF THIS PART 1 OF THE AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS PART 1 OF THE AGREEMENT, OUR (INCLUDING THE OWNER OF THE SOFTWARE) AGGREGATE LIABILITY OR DAMAGES TO YOU OR TO ANY OTHER PERSON SHALL NOT EXCEED THE AMOUNT RECEIVED BY US FROM YOU REGARDLESS OF THE FORM OF THE CLAIMS.
Some jurisdictions do not allow the exclusion or limitation of certain types of damages. Accordingly, the above exclusion may not apply in certain jurisdictions.
If you use the Software and/or the Services in violation of this Part 1 of the Agreement, you hereby agree to indemnify, hold harmless and defend us and the owner of the Software , our affiliates, licensors, business partners (including third party resellers) and each of our and their respective employees, officers, directors and representatives from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with your use of the Services in violation of this Part 1 of the Agreement and/or applicable law.
13.Right to Collect Information
The Software contains programs that collect data about your use of the Software and the Services. You agree that we may collect such data about your use of the Software and / or the Services and that the data collected through such programs may be used by us or the owner of the Software to monitor your compliance with the terms of this Part 1 of the Agreement, to provide you with support services and/or to improve the Software and/or Services. You agree that you will not prevent or in any manner restrict our right to collect such data about your use of the Software and/or Services.
14.Third Party Software
Portions of the Software include software with open source licenses from third parties that govern the use of those portions. We (including the owner of the Software) are not affiliated with nor endorsed by any of the said open-source software providers and we make no claim of ownership of the said open-source software and we supply them to you solely in accordance with the license agreements accompanying the same. Nothing contained herein limits the rights and obligations you may have under such open source licenses. However, the disclaimer of warranty and limitation of liability provisions in this Part 1 of the Agreement will apply to the Software and the Services as a whole. For details of the open source software included in the Software and the terms of the license for the same, please refer Section - below.
15.Term and Termination
The term of this Part 1 of the Agreement ("Term") will commence when you agree to the terms and conditions of this Part 1 of the Agreement by clicking the "I Agree" button below and complete the registration process for Services. You may start using the Services on commencement of the Term. This Part 1 of the Agreement will remain in effect until terminated by you or us in accordance with this Part 1 of the Agreement.
Either party may terminate this Part 1 of the Agreement by providing the other prior written notice of thirty (30) days in the manner agreed in this Part 1 of the Agreement. We may forthwith terminate this Part 1 of the Agreement (without notice) in the event that you fail to comply with or are in breach of any provision of this Part 1 of the Agreement or if you are in default of your obligation to make payment for the Services.
Upon termination of this Part 1 of the Agreement, all of your rights under this Part 1 of the Agreement shall immediately terminate and shall be required to delete all copies of the Software from your computer(s). We reserve the right to disable the Software installed on your computer systems on termination of this Part 1 of the Agreement. You will remain liable for payments and any other obligations incurred till the date of termination.
On the termination of this Part 1 of the Agreement for breach, we may, without notice, delete or deny you access to any of your Data that may remain in our possession or control after such expiry/termination. Without any liability for failure to do so, on termination of this Part 1 of the Agreement or your subscription to the Services other than for breach, we will not take any intentional action to delete your Data and will use commercially reasonable efforts to make your Data available for retrieval by you for a period of thirty (30) days thereafter.
For the terms and conditions subject to which you may avail of support and maintenance services, please refer to Part 2 - Service Level Agreement below. The owner of the Software shall not be responsible to provide any maintenance or support services for the Software or the Services.
17.Governing Law & Jurisdiction
This Part 1 of the Agreement is governed by the laws of the Republic of India, without regard to principles of conflicts of laws.
You agree that any dispute between the parties arising out of or in connection with this Part 1 of the Agreement (including any question regarding its existence, validity or termination) shall be submitted exclusively to the competent courts located at Chennai, India to the exclusion of any other court that may have jurisdiction in the matter and you consent to exclusive jurisdiction and venue in such courts.
Notices made by us to you under this Part 1 of the Agreement that affect our customers generally will be posted on Services Web Portal and shall become effective when so posted. All notices to you shall be made via email to the e-mail address you provide at the time of your registration or in any updated email address you provide to us. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
This Part 1 of the Agreement is binding on you as well as your employees, contractors, agents and any person who uses the computer / device on which the Software is installed. We may freely assign or delegate our rights and obligations hereunder. If any provision of this Part 1 of the Agreement is deemed invalid or unenforceable that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect. This Part 1 of this Agreement shall inure to our benefit and to the benefit of the owners of the software and our respective successors-in-interest and assigns. Any failure or delay by a party to exercise any right or remedy under this Part 1 of the Agreement shall not operate as a waiver of that right or remedy. This Part 1 of the Agreement is the entire agreement between us and supersedes all previous agreements, arrangements, understandings or representations (including advertisement) relating to the subject matter hereof. In the event and to the extent of any inconsistency between this Part 1 of the Agreement and Part 2 - Service Level Agreement, this Part 1 of the Agreement shall prevail to the extent of such conflict.
20.Third Party Open Source Software Licenses
20.1. Apache Version 2.0.59 developed by The Apache Software Foundation (http://www.apache.org). For license details please see the file at <HOME_DIR>/apache/LICENSE.txt
20.2. This product includes PHP 5.2.9, freely available from http://www.php.net. For license details please see the file at <HOME_DIR>/php/LICENSE.txt
20.3. GD 2.0.33 software used "AS IS" available at <HOME_DIR>/gd/COPYING
20.4. librsync version 0.9.7. For license details please see the file at <HOME_DIR>/lib/librsync/COPYING.txt
20.5. This product includes zlib version 1.2.2 freely available from http://www.zlib.org or http://www.gzip.org/zlib/.
20.6. This product includes openssl version 0.9.8e developed by OpenSSL Project. For license details, please see the file at <HOME_DIR>/openssl/LICENSE.
20.7. curl 7.16.0(http://curl.haxx.se/). For license details please see the file at <HOME_DIR>/lib/libcurl/COPYING.
20.8. This product includes crypto library. For license details please see the file at <HOME_DIR>/VConsole/com/hurlant/license.txt
20.9. This product includes effects. For license details please see the file at <HOME_DIR>/VConsole/effects/license.txt
20.10. Mongoose version 2.7 for license details please see the file at <HOME_DIR>/lib/mongoose/LICENSE.txt
CHARGES & SERVICE LEVEL AGREEMENT
This part of this Agreement deals with the following:
(i)The charges payable for grant of license to use the Software
(ii)The storage charges payable for availing of the Services
(iii)The support and maintenance service options available to you and the terms and conditions applicable to the same.
Charges for Software License:
In consideration of the license to the Software provided to you in accordance with Part 1 of this Agreement, you shall pay us the license fees as indicated in our website http://onlinebackup.vembu.com/
In consideration of the provision of Services to you in accordance with Part 1 of this Agreement, you shall pay us storage charges for space used to store your Data at the rates indicated on our website http://onlinebackup.vembu.com/
Support and Maintenance Services:
We, shall provide you with support and maintenance services for the Software and the Services. For details of such services offered, the service levels in respect of each and the charges payable, please see http://onlinebackup.vembu.com/
Terms of Payment:
Payments are due immediately after the invoice is generated. We reserve the right to discontinue the provision of the Services, deny you access to any of your Data that may remain in our possession or control, delete all data in your account, and to revoke the license to use the Software granted to you in the event payment is not received when due.
On the expiry / termination of Part 1 of this Agreement, this Part 2 shall also stand automatically expired / terminated.