Service Subscription Agreement
NOTE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT.
1. USE OF the Positive E Solutions Inc. Offsite Backup Service (the "Service") consists of the right of a Subscriber of the Service ("Subscriber") to electronically transmit and store computer data using either a private data communications network, or the Internet into a location maintained by Positive E Solutions Inc.("PESI") and to retrieve said data should they be required. The Service is made available by PESI to Subscriber during the period Subscriber maintains a paid subscription to the Service. Subscriber must be a currently licensed user of PESI's software for Services where software is required to provision access.
2. These terms and any additional Operating Rules published by PESI from time to time constitute the entire and only agreement (collectively, the "Agreement") between PESI and Subscriber (including Subscriber's designated users) with respect to the Service and supersede all other communications and agreements with regard to the subject matter hereof. Upon notice published over the Service, PESI may modify this Agreement, the Operating Rules or prices, and may discontinue or revise any or all other aspects of the Service at its sole discretion and without advance notice. Unless otherwise agreed, Subscriber's right to use the Service or to designate users is not transferable and is subject to any limits established by PESI.
3. Subscriber shall pay in advance any registration or service fees and other charges incurred by Subscriber or Subscriber's designated users at the rates in effect for the billing period in which those charges are incurred. For situations where credit card payment is utilized, Subscriber shall maintain a current authorization for PESI to debit Subscriber's credit card account for such amounts. In addition, Subscriber shall provide PESI a current street address and Internet e-mail address for future communications and shall notify PESI of any change of address. Subscriber shall pay all applicable taxes related to use of the Service by Subscriber or Subscriber's designated users. For situations where the Subscriber's credit card issuing financial institution has been notified of a payment dispute, said Subscriber agrees that proof of Service usage by Subscriber constitutes Subscriber authorization to submit payment request to Credit Card issuing financial institution. PESI may, in addition, at its sole discretion and without notice to the Subscriber, (a) suspend its performance under this Agreement and deny Subscriber's and Subscriber's designated users' access to and use of the Service until Subscriber is back in good standing, or (b) terminate this Agreement and Subscriber's and Subscriber's designated users' access to and the use of the Service. Further, PESI may cancel the Service to Subscriber without cause upon thirty (30) days prior written notice. Subscriber must provide PESI with written notice of Subscriber's intent to terminate use of the Service. At the time of cancellation, the Subscriber’s access to any of Subscriber’s data stored by the Service may be permanently terminated. PESI will not provide a refund for any unused portion of the Services paid in advance by Subscriber.
4. No bailment or similar obligation is created between Subscriber (and/or Subscriber's designated users) and PESI with respect to Subscriber's stored data. Subscriber is solely responsible for maintaining the confidentiality of Passwords, including restricting the use of the Password by Subscriber's designated users. Subscriber shall be responsible for all use of the Service accessed through Subscriber's Password. PESI SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO SUBSCRIBER, SUBSCRIBER'S DESIGNATED USERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE CONTENTS OF FILES STORED ON THE SERVICE. PESI IS NOT RESPONSIBLE FOR PROVIDING SUBSCRIBER WITH PASSWORDS IN THE EVENT OF A FORGOTTEN PASSWORD. WITHOUT THE CORRECT PASSWORD, SUBSCRIBER’S DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE.
5. Subscriber shall not use the Service for storage, possession or transmission of any information, the possession, creation or transmission of which violates any provincial/state, local or federal law, including without limitation, stolen materials, obscene materials or child pornography. SUBSCRIBER'S BACKUP FILES MAINTAINED BY PESI ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT SUBSCRIBER'S CONSENT UPON PRESENTATION TO SUBSCRIBER OR PESI OF A SEARCH WARRANT OR SUBPOENA.
6. Subscriber agrees to indemnify PESI against liability for use of Subscriber's account which liability is a direct result of Subscriber's misuse or negligent use of its account(s).
7. PESI may make copies of all files stored as part of the back up and recovery of servers utilized in connection with some of the Services. PESI is not obligated to archive such copies and will utilize them only for backup purposes. They will not be accessible to Subscriber.
8. Subscriber is responsible for and must provide all telephone and other equipment and services necessary to access the Service. Subscriber should maintain a primary electronic file of all materials stored in the Service. Subscriber should not utilize the service as a substitute for primary electronic file maintenance.
9. SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S SOLE RISK. NEITHER PESI NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR PESI OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT. NEITHER PESI NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT WILL PESI'S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE FOR THE TWELVE MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.
10. The provisions of paragraphs 4, 6, 7, and 9 are for the benefit of Subscriber and its respective Suppliers, Licensors, Employees, and Agents; and each shall have the right to assert and enforce such provisions directly on its own behalf.
11. This agreement is, and shall be governed by and construed in accordance with the law of the Province of Ontario applicable to agreements made and performed in Ontario.
12. Notwithstanding any acknowledgment of a Subscriber purchase order by PESI, any provision or condition in any purchase order, voucher, letter or other memorandum of the Subscriber which is in any way inconsistent with, or adds to, the provisions of this agreement is null and void. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect. The provisions of paragraph 9 and 12 and all obligations of and restrictions on Subscriber and its designated users shall survive any termination of this Agreement.
Offsite BACKUP SOFTWARE LICENSE AGREEMENT
NOTE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BEFORE COMPLETING THE INSTALLATION OR USING THE SOFTWARE
1. INSTALLING AND USING THE SOFTWARE ACCOMPANYING THIS LICENSE INDICATES THE ACCEPTANCE BY YOU AND/OR YOUR COMPANY (COLLECTIVELY THE "USER") OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT PRIOR TO INSTALLING OR USING THE SOFTWARE. IF THE USER DOES NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE. PLEASE NOTE THAT THE USER MAY NOT USE, COPY, MODIFY OR TRANSFER THE PROGRAM OR DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
2. LICENSE: This software program (the "Program") and the accompanying on-line read-me and help files (the "Documentation") are licensed, not sold, to the User by Positive E Solutions Inc.("PESI") or its authorized Distributor. The term "Program" shall also include any updates of the Program licensed to the User by PESI or its authorized Distributor. Subject to the terms of this agreement, the User has a non-exclusive and nontransferable right to use the Program and Documentation for the sole purpose of accessing PESI's data protection services ("Services") and not for resale or rental or the like. The User may use this Program on any computer for connecting to a legally licensed version of PESI’s software or service, both of which must be located in Canada and its territories or any other country to which this Program is legally exported. The User agrees to use your best efforts to prevent and protect the contents of the Program and Documentation from unauthorized disclosure or use. PESI and its licensors reserve all rights not expressly granted to the User. PESI's licensors are the intended third party beneficiaries of this agreement and have the express right to rely upon and directly enforce the terms set forth herein.
3. LIMITATION ON USE: User may not modify, network, rent, lend, loan, lease, sell or otherwise transfer or distribute the Program or Documentation, or copies of either to others. User may not modify, translate or create derivative works based upon the Program or the Documentation in whole or in part. User may not reverse assemble, reverse compile or otherwise attempt to derive the source code from the Program. User may not release the results of any performance or functional evaluation of any Program to any third party without prior written approval of PESI for each such release. User may electronically transmit the Program from one computer to another or over a network however it will remain the responsibility of the receiving person to individually accept the terms of this Software Licensing Agreement.
4. BACKUP AND TRANSFER: User may make up to five (5) copies of the Program, solely for backup purposes, so long as User includes PESI's copyright notice and any proprietary legends. User may not sublicense, assign, delegate, rent, lease, time-share or otherwise transfer this license or any of the related rights or obligations for any reason. Any attempt to make any such sublicense, assignment, delegation or other transfer by the User shall be void.
5. COPYRIGHT: The Program and related Documentation are copyrighted by PESI and/or its licensors. User may not copy the Program or Documentation except to load the Program into a computer as part of executing the Program, or to provide the single backup copy permitted by this license. User may make one copy of the Documentation and print one copy of any on-line documentation or other materials provided to User in electronic form. Any and all other copies of the Program and Documentation made by User are in violation of this license.
6. OWNERSHIP: PESI and/or its licensors retain all right, title and interest in and to the Documentation and all copies and the Program at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy. User owns only the medium on which the Program is recorded.
7. TERM AND TERMINATION: This license is effective until terminated. User may terminate this license at any time by destroying all copies of the Program and Documentation. This license automatically terminates if the User fails to comply with its terms and conditions. User agrees that, upon such termination, User will destroy (or permanently erase) all copies of the Program and Documentation.
8. DISCLAIMER OF WARRANTY: PESI AND ITS LICENSORS AND AUTHORIZED DISTRIBUTORS PROVIDE THE PROGRAM AND THE DOCUMENTATION TO USER "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT, OR FITNESS FOR A PARTICULAR PURPOSE. PESI does not warrant that the Program is error-free, nor that its operation will be uninterrupted, nor that any or all defects will be corrected. Should the Program prove defective, User and not PESI, or its authorized distributor and its licensors, assumes the entire cost of any service and repair. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PESI OR A PESI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
9. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to User.
10. LIMITATION OF REMEDIES: IN NO EVENT WILL PESI OR ITS DISTRIBUTORS OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF USER USE OR INABILITY TO USE THE PROGRAM INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH USE OR INABILITY TO USE THE PROGRAM, EVEN IF PESI, ITS LICENSORS OR AN AUTHORIZED PESI DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST OR THROUGH USER BY ANY OTHER PARTY.
11. Some provinces do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to the User. In no event shall PESI's or its licensors' or distributor's total liability to User for all damages, losses, and causes of action (whether in contract, tort (including negligence) or otherwise) exceed the amount paid by your company for the Program.
12. This license will be governed by the laws of the Province of Ontario as applied to transactions taking place wholly within Ontario between Ontario residents. If for any reason a court of competent jurisdiction finds any provision of this License or portion thereof, to be unenforceable, that provision of the License shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this License shall continue in full force and effect.
13. EXPORT CONTROLS: The Program and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S and/or Canada. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders; or in any other situation prohibited by U.S. law or regulation. In addition, due to the fact that it contains some encryption technology, it may violate the law of certain jurisdictions to either import, download or use the Programs. By downloading or using the Program, the User is agreeing to the foregoing and User represents and warrants that User is not located in, under the control of, or a national or resident of any such country or on any such list.
14. Complete Agreement: This License constitutes the entire agreement between the parties with respect to the use of the Program and the related Documentation, and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by a duly authorized representative of PESI.
Positive E Solutions Inc. (hereinafter referred to as PESI) is covered by the Personal Information Protection And Electronics Documents Act, which governs how an individual's personal information is collected, stored, used and disclosed.
PESI must obtain an individual's consent when collecting, using or disclosing the individual's personal information.
Individuals have the right to access their personal information held by an organization and to challenge its accuracy, if need be. Personal information can only be used for the purposes for which it was collected. If an organization is going to use it for another purpose, consent must be obtained again.
Personal information includes any of the following about an identifiable company or individual including but not limited to:
company name, contact names, address, phone and fax numbers, credit card numbers, Provincial Sales Tax (PST) exemption numbers.
a) Information that is publicly available, such as a person's name, address, telephone number and electronic address, when listed in a directory or made available through directory assistance;
b) Business-contact information, such as the name, title or business address or telephone number of an employee of an organization.
PESI collects and stores any information that you, as a customer, provide us in order to complete an inquiry, process an order, or respond to a request for information about a product or service offered by PESI. If you request that product or services be delivered to an end user customer, PESI collects that information to process your request at that time and in the future.
As an individual, you have the right to access your personal information and request changes, if required. It is your legal right to choose not to provide PESI with some or all of your personal information, or to deny us the use or disclosure of your information for certain purposes. Should you exercise this right, PESI will not unreasonably withhold requested products and/or services; however, certain information must be provided in order to supply products or services. By providing your consent for us to collect, use and disclose your personal information, PESI can better provide you with personalized services, products and product information.
Limit Use, Disclosure And Retention of Personal Information
PESI will only disclose the personal information with your express consent, unless:
a) Releasing such information is otherwise required by applicable law, statute, regulation, ordinance, or court order or
b) PESI has reason to believe that disclosing such information is necessary to identify, contact, or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) PESI rights or property, or anyone else that could be harmed by such activities.
The Privacy Officer can be reached at:
The Privacy Officer
Positive E Solutions Inc.
287 Tiffin St. Unit 11
or emailed at:
Customers may access their information by completing a Request for Personal Information form and submitting the same to the Privacy Officer at PESI Requests must be in writing with appropriate identification provided.
Handling Complaints and Questions
PESI will investigate all complaints and if it finds a complaint justified will try to resolve it. If necessary PESI will take appropriate measures to ensure that other customers will not experience the same problem.
If a customer is not satisfied with the way PESI has responded to a complaint concerning their personal information, there are a variety of resources available for pursuing the customers concerns.
If a customer is not satisfied that PESI is operating in compliance with the requirements of this code, the customer may file a written complaint with the Commissioner at the following address:
Federal Privacy Commissioner
112 Kent St.
Toll Free: 1-800-282-1376
Website Privacy Details
We believe that your personal information deserves protection. While you can visit PositiveESolutions.com (the “Web Site”) without registering or providing any personal information, you will need to register if you want to make a purchase. (As noted in the Legal Statement on the Web Site, except where stated otherwise, the term "PESI" used on the Web Site shall be deemed to include Positive E Solutions Inc., and their respective affiliates, subsidiaries, successors and assigns.)
What does PESI use your personal information for?
To build your account with PESI.
To process your orders.
To personalize the delivery of contents to you.
In addition, we require some information (your name and e-mail address) when you submit a Reader Review. These reviews are accessible to all site visitors - if you don't want your comments to be viewed by all visitors, don't submit them. PESI reserves the right to edit or remove any Reviews that are deemed, in our sole discretion, to be offensive, illegal, or inappropriate in any way for the Web Site. PESI also reserves the right to remove any submissions that it deems to be off-topic.
PESI may also use personal account information and data collected through your personal identification to generate statistics and aggregate reports for internal use and for sharing with affiliates, subsidiaries, licensees, successors and advertisers. These statistics and aggregate reports will not contain any personally identifiable information. Your identity is kept anonymous.
How does PESI protect your personal information?
When you provide us with personal information or place an order, it’s done through a secure server or by telephone contact. One of today’s most advanced security systems - Secure Socket Layers (SSL) - encrypts all information you provide before sending it to our own server. Only when it reaches the PESI servers is your information decrypted.
Does PESI use “Cookies”?
Does PESI disclose personal customer information to anyone other than PESI?
Users' non-aggregated specific personal information is not currently sold, rented or made available to anyone other than PESI, but we may decide to do so in the future. If this were to happen, PESI would announce such a plan and ask you to "opt in". By default, we'd assume that you don't want in - if you wanted to share your personal information, you would have to respond. In the absence of such a response, your information would not be shared with anyone other than PESI.
PESI reserves the right to co-operate with local, provincial and national officials in any investigation requiring either personal information -- including any personal information provided online through PositiveESolutions.com -- or reports about lawful or unlawful user activities on the Web Site.