For a reliable online backup experience, DN Online Backup requires the following:
- Reliable internet connection (5mbps or higher for real-time file backups).
- Computers must be left on over-night for imaging to occur.
TERMS AND CONDITIONS OF USE
PLEASE READ THIS DOCUMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU
These terms and conditions (hereinafter the “Agreement”) apply to your subscription to the DN Online Backup online backup subscription (the “Backup Service”) sold by Dan’s Networks LLC (“DN”) including its affiliates or subsidiaries.
- ACCEPTANCE OF THESE TERMS AND CONDITIONS: By purchasing a subscription, you agree to be bound by the Agreement, which governs your use of the Backup Service, which is provided to you by DN. If you agree to these Terms and Conditions on behalf of your employer, you represent that you have the authority to do so, in which case, reference hereinafter to “you” and “your” will also refer to your employer. If you do not agree to be bound by the Agreement, notify your provider at once. Your subscription will be terminated and you will not be given access to the Backup Service.
- THE BACKUP SERVICE allows you to back up and restore your data, photographs, videos, music and other digital files (collectively, the “Content”) via the Internet. Backup of the Content you designate occurs via your Internet connection at the time and frequency implemented by DN. Our standard procedure is to backup system images (if applicable) daily at 12AM and real-time file backups every minute. The Backup Service is not an archival service. It is solely your responsibility to maintain original versions of the Content that you backup through the Backup Service. You must provide and pay for all computer equipment and services necessary to use Backup Service, including access to the Internet. DN makes reasonable efforts to provide you with uninterrupted access to the Backup Service. However, there will be occasions when the Backup Service will be interrupted, including, for maintenance, upgrades, emergency repairs or the failure of telecommunications equipment and services. DN will take reasonable steps to minimize such disruption. Please see “Disclaimer of Warranties” and “Limitation of Liability,” below, for important information about DN’s responsibilities.
- YOUR ACCOUNT INFORMATION: The DN Backup service will be billed on a per-GB/month charge – this will be set per customer as part of the Managed Services Agreement (MSA) in place. Unless the MSA is terminated, backups will be provided. Should payment not be received in accordance with the Agreement, your access to your Backup Service account will also terminate. DN uses a secure password for encrypting online content. DN will not otherwise use or share the password, unless required to do so by law.
- YOUR USE OF THE BACKUP SERVICE: You are solely responsible for all Content and Account Information that you transmit, store, view or restore through the Backup Service and to and from your account. You agree that your use of the DN Service will fully comply with all applicable laws, rules and regulations and that it will also comply with all regulations, policies and procedures of networks through which you access and use the Backup Service. Without limiting the generality of these requirements, you agree that you will not use the Backup Service to:
- Transmit, store, view or restore Content that: (i) contains illegal material; (ii) is harassing, libelous, defamatory, abusive, threatening, harmful, pornographic, obscene or is otherwise tortious or offensive, as determined by DN in its sole discretion; (iii) encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate a law; or (iv) contains any viruses, worms, Trojan horses or other code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Backup Service;
- Plan or carry out any illegal activity;
- Violate the intellectual property rights or other rights of any third party, including, without limitation, any person’s copyrights in music, videos, images, books or other works;
- Breach any duty of confidentiality that you owe to anyone;
- You acknowledge that U.S. and other countries’ export laws may apply to the transfer of technology and software through the Backup Service. You warrant that any software you transmit and store using the Backup Service contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. You also warrant that any technology you transmit and store is approved for export without a license. Notwithstanding the foregoing, you are solely responsible for obtaining any specific licenses relating to the export of technology and/or software if a license is required.
- INSPECTION OF YOUR CONTENT: DN does not control the Content of any customer’s account and does not have any obligation to monitor or review Content for any purpose. Notwithstanding the foregoing, if DN reasonably suspects that an Account is being used for storage or distribution of any Content that violates these Terms and Conditions, DN reserves the right, in its sole discretion and subject to applicable law, to terminate your account, delete your Content and/or, if applicable, notify the appropriate authorities, without prior notice to you. YOUR CONTENT (INCLUDING PERSONAL INFORMATION) IS SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT YOUR CONSENT, UPON PRESENTATION TO YOU OR DN OF A SEARCH WARRANT, SUBPOENA OR OTHER LEGAL PROCESS, OR IF DN REASONABLY SUSPECTS A VIOLATION OF THESE TERMS AND CONDITIONS HAS OCCURRED. Unless required by law, you have no right to be notified by DN of any such disclosure. YOU AGREE TO HOLD DN HARMLESS FROM AND AGAINST, AND WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY CLAIMS YOU MAY HAVE AGAINST DN RESULTING FROM ANY DISCLOSURE, INVESTIGATION OR ACT OR OMISSION OF DN IN THE COURSE OF CONDUCTING OR COOPERATING WITH AN INVESTIGATION AS SET FORTH IN THIS SECTION.
- SECURITY OF YOUR CONTENT: The Backup Service provides secure Content transmission and storage. Content is encrypted using industry standard algorithms, and remains encrypted at all times prior to restore. Because it is not possible to make encrypted files completely impenetrable, you acknowledge that it may be possible for an unauthorized third party to access your Content, and you agree that, in such event, any loss that you may suffer is subject to the Limitation of Liability section of these Terms and Conditions. You acknowledge that the Backup Service may include technology and software that are subject to the export control laws and regulations of the U.S., Canada and other countries. You agree to abide by all applicable export control laws and regulations. Under such laws and regulations, the Backup Service may not be sold, leased or otherwise transferred to restricted end-users or to restricted countries or used by you when visiting restricted countries.
- MODIFICATIONS: DN reserves the right to modify or discontinue the Backup Service, with or without notice or liability to you or any third party.
- TERMINATION & CANCELLATION: DN may, at its sole discretion, immediately terminate your access to the Backup Service, without liability to you or any third party, if it believes that you have violated these Terms and Conditions or if you fail to pay for the Backup Service (as part of the MSA) as agreed. In its discretion, and subject to applicable law, DN may prompt you to restore your Content prior to termination, after which DN will have no obligation to store your Content or permit you to restore it. You may cancel the Backup Service by contacting DN. Before you cancel, be sure that you have restored all of your Content from the Backup Service. Once you submit payment for the Backup Service, the transaction is final, and you will not be refunded all or any part of your payment outside the standard DN refund policy. In the event that DN terminates your account, there will be no refunds.
- USE OF INFORMATION SUBMITTED: You agree that DN is free to use any comments, information or ideas in any communication you send to DN, without compensation or acknowledgement to you, for any purpose whatsoever, including, but not limited to, modifying and marketing the Backup Service or developing, manufacturing and marketing other products or services.
- ELECTRONIC COMMUNICATIONS: By using the Backup Service, you consent to receiving electronic communications and notices from DN, and you agree that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
- DISCLAIMER OF WARRANTIES: The transmission, storage, viewing and restoration of Content through the Internet are subject to a variety of conditions that make such transmission, storage, viewing and restoration potentially unreliable. ACCORDINGLY, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT USE OF THE BACKUP SERVICE IS AT YOUR SOLE RISK. THE BACKUP SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. DN EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO YOUR ACCOUNT OR THE BACKUP SERVICE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DN MAKES NO REPRESENTATION OR WARRANTY: (A) THAT THE BACKUP SERVICE WILL MEET YOUR REQUIREMENTS; (B) THAT THE BACKUP SERVICE OR YOUR ACCESS TO IT WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE; (C) THAT YOUR CONTENT WILL NOT BE LOST, COMPROMISED OR DAMAGED; (D) THAT YOUR COMPUTER OR NETWORK OPERATIONS OR THOSE OF ANY PERSON WITH WHOM YOU SHARE CONTENT WILL NOT BE NEGATIVELY AFFECTED BY YOUR USE OF THE BACKUP SERVICE; (E) THAT ANY DATA ON YOUR COMPUTER OR NETWORK WILL NOT BE LOST OR DAMAGED AS A RESULT OF YOUR USE OR NON-USE OF THE BACKUP SERVICE; OR (F) THAT DEFECTS IN THE BACKUP SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DN OR THROUGH THE BACKUP SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY LAW, DN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS, OR LOST REVENUE ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION: (1) THE USE OF OR INABILITY TO USE THE BACKUP SERVICE, (2) LOSS OR ALTERATION OF CONTENT, (3) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE BACKUP SERVICE, (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF CONTENT OR OTHER TRANSMISSIONS, OR (5) ANY OTHER MATTER RELATING TO THE BACKUP SERVICE, EVEN IF DN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT DN’S TOTAL LIABILITY FOR DAMAGES RELATED TO THE BACKUP SERVICE IS LIMITED TO THE TOTAL AMOUNT YOU HAVE PAID FOR THE BACKUP SERVICE OVER THE 12 MONTH PERIOD LEADING UP TO THE CAUSE OF THE CLAIM, OR, IF YOUR CLAIM AROSE DURING A FREE TRIAL PERIOD, TO THE THEN-CURRENT ANNUAL AMOUNT CHARGED FOR THE BACKUP SERVICE. Notwithstanding anything in these Terms and Conditions to the contrary, the remedies set forth in these Terms and Conditions shall apply: (i) even if such remedies fail their essential purpose, (ii) as a result of a breach of a fundamental term of the Agreement, or (iii) as a result of a fundamental breach of the Agreement. Some jurisdictions do not allow the limitation or exclusion of liability for certain damages, so some of the above limitations may not apply to you, in which case DN’s liability shall be limited to the maximum extent permitted by applicable law.
- THIRD-PARTY CLAIMS/INDEMNIFICATION: DN shall not be liable for claims made against you or DN arising out of your use of the Backup Service, and you hereby agree to indemnify and hold DN, its related companies, officers, directors, employees and agents harmless from and against any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising, directly or indirectly, in whole or in part, out of your use of the Backup Service, the use of the Backup Service by any other person who accesses it using your Account Information, your Content, your violation of these Terms and Conditions or your infringement of any intellectual property or other right of any third party.
- GOVERNING LAW: THE PARTIES AGREE THAT THIS AGREEMENT, ANY SERVICES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN YOU AND DN arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, DN’s advertising, or any related transaction SHALL BE GOVERNED BY THE LAWS OF THE COUNTRY OF MONTGOMERY, THE STATE OF TEXAS, AND THE COUNTRY OF THE UNITED STATES APPLICABLE THEREIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. If you use the Backup Service to back up Content in one jurisdiction (as defined by DN) but restore it in another jurisdiction, then the law governing these Terms and Conditions applicable to the backup shall also apply to the restoration.
- BINDING ARBITRATION: ANY CLAIM, DISPUTE, OR CONTROVERSY BETWEEN YOU AND DN SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING INDIVIDUAL (NON-CLASS) ARBITRATION.
- Before commencing any proceeding in the manner set out below, the parties shall first attempt to resolve any dispute or differences between them by way of good faith negotiation. The good faith negotiation shall commence by each party communicating their position regarding the complaint, claim, dispute, or controversy to the other party, and how the parties should resolve the dispute. The parties shall then make good faith efforts to negotiate a resolution of the claim, dispute, or controversy. Neither party shall commence any proceedings unless the good faith negotiation fails.
- Except where expressly prohibited by applicable statute, ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) YOU MAKE AGAINST DN, its agents, employees, officers, directors, successors, assigns or affiliates (collectively for purposes of this paragraph, “DN”) arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future, (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), DN’s advertising, or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION in accordance with the laws of the Province of Ontario and the then current Rules of Procedure for Commercial Arbitration of the ADR Institute of Canada, Inc. (www.amic.org) (the “Institute”). The arbitration tribunal shall consist of one arbitrator chosen by the parties from a slate of eight (8) proposed arbitrators provided by the Institute. If the parties are unable to agree on the appointment of an arbitrator within seven (7) days after receipt of the slate provided by the Institute, either party may apply to the Court to have an arbitrator appointed. The final decision of the arbitrator shall be final and binding and no appeal shall lie therefrom, and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall have the power to order one party to contribute to the reasonable costs and expenses of the other party, or to pay all or any portion of the costs of the arbitration, as the arbitrator determines Where you are located in a location where a statute expressly indicates that an arbitration requirement will not apply to you, as a consumer, you agree to solely make any claim against DN in a small claims court located in Ontario or in the province in which you reside.
- Notwithstanding the provisions in this Section 15 or anywhere else in this Agreement, DN shall have the right to seek and obtain any provisional or interim relief from any court of competent jurisdiction to protect its trade-mark, property rights or confidential information or to preserve the status quo.
- GENERAL: If any provision of these Terms and Conditions is held to be invalid or unenforceable, such provision shall be struck, and the remaining provisions shall be enforced; provided, however, that if the individual (non-class) nature of the arbitration provision is found unenforceable, the entire arbitration provision shall not be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the extent or scope of such section. DN’s failure to enforce any provision of these Terms and Conditions shall not constitute a waiver of that or any other provision. These Terms and Conditions set forth the entire understanding and agreement between you and DN with respect to the Backup Service.
- Other Documents. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s) unless otherwise agreed to in a written agreement signed by both you and DN.
- License; Title. Your subscription is made for a license to use the Backup Service. You obtain no right, title or interest in the ownership of any software, marketing materials or other intellectual property used by DN to deliver the Backup Service. You must notify DN within 21 days of the date of your order if you believe there is a defect with your subscription.