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Software License

END-USER SOFTWARE LICENSE AGREEMENT

By executing this Agreement, Prestwood DATA SERVICES LLC ("Prestwood DATA SERVICES") and the user of this software ("Licensee") are agreeing to a license of certain computer programs in accordance with the terms and conditions contained in this Agreement.

Licensee has read, understands and agrees to the terms and conditions of this Agreement and has duly authorized the individual signing this Agreement on its behalf to do so.

TERMS AND CONDITIONS

  1. DEFINITIONS
    1. "Prestwood Remote Backup (TM)" (Licensed Software) means the licensed software that is designed to allow the user to backup electronic data from one (1) computer to a remotely located data center utilizing a standard internet connection.
    2. "Updates" means Prestwood Remote Backup updates that will be required, or made available, in order to ensure the proper functionality of the software for its intended use.
    3. "User Manual" means any documentation or information provided by Prestwood DATA SERVICES to Licensee that contains instruction, guidance, troubleshooting, or other information pertaining to the License Software.

  2. GRANT OF LICENSE

    On the terms and conditions of this Agreement, and upon payment of all applicable license fees, Prestwood DATA SERVICES grants to Licensee and Licensee accepts the non-exclusive licenses and the restrictions set forth below.

    1. Software License. Prestwood DATA SERVICES grants to Licensee a non-exclusive license to install and use Prestwood Remote Backup (TM) in machine-readable object code form only in the configuration and to the scope defined in the user manual provided with the licensed software.
    2. Limitation on Use. Licensee understands and acknowledges that use of the Licensed Software is controlled by this License Agreement and the User Manual. Licensee may not use the Licensed Software beyond the scope enabled by this License Agreement and the User Manual upon payment of the applicable license fee. The Licensed Software functions as a single program, and is not intended to be used in conjunction with other programs not expressly authorized by Prestwood DATA SERVICES. Licensee may install and use only one (1) copy of the Licensed Program to one computer at any given time. Licensee may not modify or alter the Licensed Software or this License Agreement to increase the scope of its use of the Licensed Software. The Licensed Program is intended to backup the data for one (1) computer, and Licensee may not utilize the Licensed Program to backup data from multiple sources through one (1) computer. Further, Licensee may not use any device, process or computer program that increases, directly or indirectly, the scope of use of the Licensed Software. If Licensee wishes to increase the scope of its licensed use of the Licensed Software, Licensee must purchase an additional license from Prestwood DATA SERVICES.
    3. Back-Up Copies. Licensee may make one copy of the Licensed Software solely for the back-up or archival purposes, provided that such copy must contain all proprietary notices affixed to or appearing in the original copy.

  3. OWNERSHIP AND USE RESTRICTIONS

    1. Ownership. Licensee acknowledges that the Licensed Software, all updates, enhancements, corrections and modifications to the Licensed Software (regardless whether made by Prestwood DATA SERVICES, Licensee or, anyone else), all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the Licensed Software (or any enhancements, corrections or modifications) and the User Manual, are and shall remain the sole and exclusive property of Prestwood DATA SERVICES and, where applicable, Prestwood DATA SERVICES' suppliers. This License Agreement does not convey title or ownership to Licensee, but instead gives Licensee only the limited rights set forth in Section II. Prestwood DATA SERVICES reserves all rights not expressly granted by this License Agreement.
    2. Restrictions. Except as expressly set forth in this License Agreement, Licensee has no right to use, make, sublicense, modify, transfer, rent, lease, sell, display, distribute or copy originals or copies of the Licensed Software or User Manual, or to permit anyone else to do so.
    3. Transfer. Licensee may not assign or transfer its rights under this License Agreement or its rights to the Licensed Software without the prior written consent of Prestwood DATA SERVICES. Upon any such transfer or assignment, Licensee must transfer all copies of the Licensed Software and User Manual and assignee must agree in writing to all the terms of this License Agreement.
    4. Proprietary Notices. Licensee shall not remove any patent, copyright or trademark or other intellectual property notices that may appear on any part of the Licensed Software or the User Manual.
    5. Trade Secrets. Licensee acknowledges that the Licensed Software, in its source code form, contains valuable trade secrets belonging to Prestwood DATA SERVICES. Licensee may not reverse engineer, unencrypt, decompile, disassemble or otherwise translate the Licensed Software or allow anyone else to do so.
    6. Audit Rights. Licensee authorizes Prestwood DATA SERVICES or its designee to audit its compliance with this License Agreement, as Prestwood DATA SERVICES deems reasonable.
    7. Notice to Employees and Agents. Licensee will use commercially reasonable efforts to inform its employees, agents and others using the Licensed Software under this License Agreement that it may not be used, copied or transferred in violation of this License Agreement.
    8. Irreparable Harm. Licensee acknowledges that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in Section III of this License Agreement and that any such breach or violation may leave Prestwood DATA SERVICES without an adequate remedy at law. Licensee therefore agrees that, in addition to any other remedies available at law, in equity or under this License Agreement, Prestwood DATA SERVICES shall be entitled to obtain temporary, preliminary and permanent injunctive relief, without bond, from a court of competent jurisdiction to restrain any such breach or violation.

  4. LIMITED WARRANTY
    1. Ownership. Prestwood DATA SERVICES warrants that it owns or has the right and authority to license the Licensed Software and User Manual to Licensee on the terms and conditions of this License Agreement.
    2. Licensed Software. Prestwood DATA SERVICES warrants that, in the form delivered to Licensee by Prestwood DATA SERVICES, the Licensed Software shall perform substantially in accordance with its intended use. Prestwood DATA SERVICES' warranty is conditioned upon: (a) the use of the Licensed Software in accordance with the User Manual and other instructions provided by Prestwood DATA SERVICES and shall be null and void if Licensee alters or modifies the Licensed Software without Prestwood DATA SERVICES' prior written approval, does not use the Licensed Software in accordance with the User Manual and Prestwood DATA SERVICES' instructions, or if the Licensed Software fails because of any accident, abuse or misapplication; and (b) Licensee notifying Prestwood DATA SERVICES in writing of the claimed nonconformity within 90 days after discovery of the nonconformity.
    3. Remedy. As Prestwood DATA SERVICES' sole liability and Licensee's sole remedy respecting the Licensed Software's nonconformance with the limited warranty set forth in this Section, Prestwood DATA SERVICES may at its option: (a) use reasonable efforts to correct the Licensed Software to make it conform substantially with the specifications set forth in the User Manual; (b) replace the Licensed Software; or (c) upon return of the Licensed Software and User Manual to Prestwood DATA SERVICES, refund the license fees paid by Licensee and terminate this License Agreement. Prestwood DATA SERVICES DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE WILL OPERATE PROPERLY WITH OTHER HARDWARE OR SOFTWARE, THAT THE LICENSED SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

  5. NO OTHER WARRANTY

    EXCEPT AS SET FORTH IN SECTION IV, Prestwood DATA SERVICES IS PROVIDING THE LICENSED SOFTWARE AND THE DOCUMENTATION "AS IS," AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Prestwood DATA SERVICES SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ORAL OR WRITTEN) WITH RESPECT TO THE LICENSED SOFTWARE OR USER MANUAL INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT Prestwood DATA SERVICES KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) OR CONDITIONS OF TITLE OR NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. Prestwood DATA SERVICES ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

  6. LIMITATION OF LIABILITY

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF Prestwood DATA SERVICES FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE OR USER MANUAL OR OTHERWISE ARISING FROM THIS LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, PATENT, EQUITY OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES THAT LICENSEE HAS ACTUALLY PAID UNDER THIS AGREEMENT. NEITHER Prestwood DATA SERVICES NOR ANY OF ITS RESELLERS, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN EQUITY, OR OTHERWISE, OR FOR ANY LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF DATA OR LOSS OF USER DAMAGES ARISING OUT OF THIS AGREEMENT OR THE USE (OR INABILLITY TO USE) OF THE LICENSED SOFTWARE EVEN IF Prestwood DATA SERVICES OR RESELLER, SUPPLIER OR LICENSOR HAS BEEN AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. IN NO EVENT WILL Prestwood GATA SERVICES BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR SHOULD HAVE BEEN DISCOVERED.

  7. THIRD PARTY LIMITATION OF LIABILITY
    1. GENERAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE AGREES TO HOLD HARMLESS AND INDEMINIFY ANY RESELLERS, SUPPLIERS OR LICENSORS OF THE LICENSED SOFTWARE TO THE LICENSEE, FOR ALL CLAIMS OF ANY NATURE RELATED TO THE LICENSED SOFTWARE OR USER MANUAL OR OTHERWISE ARISING FROM THIS LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, PATENT, EQUITY OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.
    2. EXCEPTION. IN THE EVENT THAT LICENSEE HAS PURCHASED THE LICENSED SOFTWARE FROM A THIRD PARTY OTHER THAN Prestwood (E.G. A RESELLER, SUPPLIER OR LICENSOR), LICENSEE ACKNOWLEDGES THAT CONTINUED SERVICE AND STORAGE OF DATA IS CONTINGENT UPON SUCH THIRD PARTY'S PROMPT PAYMENT OF INVOICES TO Prestwood DATA SERVICES. A THIRD PARTY'S FAILURE TO PROMPTLY PAY ITS INVOICES MAY RESULT IN A CESSATION OF LICENSEE'S SERVICE AND A LOSS OF LICENSEE'S DATA. IN SUCH AN EVENT, LICENSEE AGREES TO HOLD HARMLESS Prestwood DATA SERVICES, AND ACKNOWLEDGES THAT ANY RECOVERY WILL BE LIMITED TO AN ACTION AGAINST THE THIRD PARTY, SUBJECT TO THE OTHER TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

  8. TERMINATION

    Without prejudice to any other rights it may have under this License Agreement or at law or equity, Prestwood DATA SERVICES may terminate this License Agreement if Licensee fails to comply with the terms of this Agreement. Upon termination of this License Agreement for any reason, Licensee will immediately discontinue use of the Licensed Software, destroy or return to Prestwood DATA SERVICES all copies of the Licensed Software and User Manual in whatever form they exist, including all back-up copies, and certify in writing to Prestwood DATA SERVICES that all copies have been destroyed.

  9. INDEMNIFICATION

    The Licensed Software is intended for use only with properly licensed media, content, and content creation tools. It is Licensee's responsibility to ascertain whether any copyright, patent or other licenses are necessary and to obtain any such licenses to serve and/or create or compress such media and content. Licensee agrees to transmit and/or compress only those materials for which it has the necessary patent, copyright or other permissions, licenses and/or clearances. Licensee agrees to hold harmless, indemnify and defend Prestwood DATA SERVICES, its officers, directors and employees, from and against any losses, damages, fines and expenses (including attorneys' fees and costs) arising out of or relating to any claims that Licensee has encoded, compressed, copied or transmitted any materials (other than materials provided by Prestwood DATA SERVICES) in connection with the Licensed Software in violation of another party's rights or in violation of any law. If Licensee is importing the Licensed Software from the United States, it shall indemnify and hold Prestwood DATA SERVICES harmless from and against any import and export duties or other claims arising from such importation.

  10. GENERAL TERMS

    1. Governing Law and Forum. This License Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin and the United States without reference to conflicts of laws principles. Licensee consents to the exclusive jurisdiction and venue of the federal and state courts in Dane County, Wisconsin for resolution of any disputes concerning this Agreement.
    2. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this License Agreement, the prevailing party shall be entitled to recover from the losing party its reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
    3. Complete Understanding. This License Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and replaces all prior or contemporaneous understandings or agreements, written, or oral, regarding its subject matter. No amendment to or modification of this License Agreement will be binding unless in writing and signed by duly authorized representatives of both Prestwood DATA SERVICES and Licensee.
    4. Absence of Third Party Beneficiaries. Unless otherwise expressly provided, no provisions of this License Agreement are intended or shall be construed to confer upon or give to any person other than Prestwood DATA SERVICES and Licensee any rights, remedies or other benefits under or by reason of this License Agreement.
    5. Disclaimer of Agency. Prestwood DATA SERVICES and Licensee each acknowledge that the parties to this License Agreement are independent. Neither party is authorized or empowered to act as agent or legal representative for the other for any purpose and shall not on behalf of the other enter into any contract, warranty or representation as to any matter. Neither party shall be bound by the acts or conduct of the other and nothing herein shall be construed as creating a partnership or joint venture.
    6. No Waiver. The failure of either party to enforce any provision of this License Agreement shall not be deemed a waiver of that provision or any other available right or remedy.
    7. Headings. The section headings used in this License Agreement are intended for convenience only and shall not be deemed to modify, limit or supersede any provision.
    8. Severability. In the event that any provision of this License Agreement is found to be invalid, illegal or unenforceable pursuant to judicial decree or decision, the remainder of this License Agreement shall remain valid and enforceable according to its terms.
 
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