Terms and Conditions
These terms of service contained in this agreement (Agreement) are a legal agreement between you, either an individual or a single legal entity (You, you, Your, or your) and OlyPen Corporation. OlyPen operates the OlyPen SecureSafe service and is referred to in this Agreement as OlyPen. The terms contained in this Agreement govern your use of OlyPen SecureSafe online services (Services), the OlyPen SecureSafe website (Site), the client software distributed with this Agreement and any other software provided by OlyPen for use with OlyPen SecureSafe , including but not limited to updates and any accompanying written documentation (Software). Collectively, the Software, the Site and the Services may be referred to as the Products. By clicking the I AGREE or similar button, or using any Products, you agree to the terms of this Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS Agreement, THEN DO NOT INDICATE ACCEPTANCE AND DO NOT USE THE Products. If you agree to this Agreement on behalf of a legal entity, such as a business, user group or other organization, you represent that you have the authority to bind that legal entity to this Agreement.
1.0 Description of Service. OlyPen SecureSafe products save a copy of files you designate for backup (your Back-up) to a server operated by OlyPen. The OlyPen SecureSafe Products periodically scan for changes or additions to designated files and then re-save a copy of modified files or create a copy of newly designated files.
2.0 Account Access and Ownership. To access and use OlyPen SecureSafe services, you agree to maintain a subscription to the OlyPen SecureSafe Service, to provide OlyPen with accurate and complete information when you register and to keep such information accurate and complete while you have a subscription for OlyPen SecureSafe . You are solely responsible for maintaining the confidentiality of your username and password and solely responsible and liable for any and all activities that occur with respect to your account. Compromise of your username and password may compromise the security of your Back-up. Your email address and answers to security questions indentifies you as the owner of the Back-up. If you obtained access to the OlyPen SecureSafe by a business or organization, or as a member of a group of users, the business or organization is the owner of the Back-up. You further acknowledge and agree that the business, organization, or other group of users may have selected one or more administrators to control, manage and use the OlyPen SecureSafe products on behalf of such business or organization, or group of users, and the administrators may have been granted certain privileges such as access to and control of your Back-up, without notice to you.
3.0 Fees and Renewals. You agree to pay the fixed subscription and variable usage-based fees, if any, for the account type you have selected and agree to any applicable restrictions, including quotas on the amount of storage you are allowed to use. If you exceed any quota allocated to your account, you agree that OlyPen may restrict your ability to backup further data until you reduce your storage usage or sign-up to another type of account with a higher quota or no quota at all. If you use a credit card for payment, you authorize OlyPen to automatically renew your subscription and charge the then-current renewal fees to the credit card associated with your account unless you notify OlyPen in advance that you do not want to renew your subscription. If you fail to renew your subscription on or before the renewal date, OlyPen may restrict your access to your Back-up.
4.0 Software and License. The OlyPen SecureSafe Products are licensed and not sold to you. During the term of your subscription, OlyPen grants you a limited, non-exclusive, non-transferable and revocable license to access the Site and use the Services and Software. You may install and use the Software in executable form only on the number and type of devices that are specified in the then-current documentation provided by OlyPen or an authorized reseller. You acknowledge that certain third party code may be provided with the Software and that the license terms accompanying that code will govern its use. You acknowledge that OlyPen or third parties own all right, title and interest in and to the Products, including all intellectual property rights. Except for the license granted in this Agreement, OlyPen and its licensors retain all rights in the Products, and no implied licenses are granted to you. You further agree that you will not, nor will you permit another person to: * copy or distribute the OlyPen SecureSafe Products, except to the extent that copying is necessary to use the OlyPen SecureSafe Products for the purposes set forth herein; * sublicense, lease, rent, loan, transfer or distribute any portion of the Products; * modify, adapt, translate, reverse engineer, decompile, disassemble, modify, or create derivative works of the OlyPen SecureSafe Products; * remove, obscure, or alter any trademark, copyright or other proprietary rights notices displayed in the Software or on the Site; * All use of the OlyPen SecureSafe Products shall be in accordance with this Agreement and its then-current documentation.
4.1 Open Source License Disclosure & Disclaimer. Client software provided for use with OlyPen SecureSafe Products, specifically OlyPen SecureSafe Client version 1 (Client-1.x), is a derivative work of open source software governed under open source software licenses, specifically the General Public Use License (GNU), the GNU Lesser General Public License (LGPL) and the MIT License (MIT). A list of open source components, authorship and applicable licenses for all open source components of this derivative work can be found by clicking the License Tab in the Client-1.x software. The Client-1.x software is provided to you free of charge, with no restrictions or limitations on use, distribution or otherwise beyond those contained in the GNU, LGPL and/or MIT Licenses. OlyPen claims no ownership or proprietary right to any of the open source components used in the Client-1.x software. Source code for the open source components of the Client-1.x software is available upon request, by emailing support@olypen.com. License terms for the MIT License can be found at http://web.mit/edu/. License terms for the GNU and LGPL license can be found at http://www.gnu.org.
5.0 Acceptable Use. You are solely responsible for your conduct related to the Service and any backup data you store on the Service. You agree that you shall be solely responsible for ensuring that your use of the OlyPen SecureSafe Products is in compliance with all applicable foreign, federal, state and local laws, rules and regulations. You further agree that you will: * not use the OlyPen SecureSafe Products in a manner that violates any laws or regulations; * not use the OlyPen SecureSafe Products in a manner that violates the intellectual property or other rights of third parties; * not transmit any material that contains viruses or other harmful computer code or files such as Trojan horses, worms or time bombs; * be governed and comply with the then-current OlyPen Acceptable Use Policy (AUP) as published on OlyPens web site (www.olypen.com). You acknowledge and agree that OlyPen, in its sole discretion, may suspend or terminate your account for alleged violations of this Agreement and/or violations of the OlyPen AUP.
6.0 Term and Termination. This Agreement and your license will commence at the time and on the day you click the I AGREE button or install, access or use the OlyPen SecureSafe Products, whichever is earlier. This Agreement and your license shall remain in effect until terminated by either party or superseded by a revised Agreement. This Agreement, your license and your subscription to the OlyPen SecureSafe Products will automatically terminate or expire upon the: * non-renewal, cancellation or expiration of your subscription or your failure to pay invoices when due; * OlyPens discontinuance of the OlyPen SecureSafe Products, or; * Failure to comply with this Agreement.
6.1 Free Account. If you have a Free Account, OlyPen may terminate your account and this Agreement immediately and without notice if your computer fails to access the Services to perform a backup for more than thirty (30) days or you fail to comply with this Agreement. OlyPen accepts no liability and no responsibility for loss of data as a result of termination (see Effect of Termination, Sec. 6.5 below).
6.2 Paid Account. If you have a Paid Account, OlyPen may terminate your account and this Agreement immediately and without notice if you fail to renew your subscription, fail to pay any fees or invoices when due or otherwise fail to comply with this Agreement. OlyPen accepts no liability and no responsibility for loss of data as a result of termination (see Effect of Termination, Sec. 6.5 below).
6.3 Paid Account OlyPen Subscriber. If you have a Paid Account in combination with other OlyPen services (see Other OlyPen Services, Sec. 11.2 below), OlyPen may terminate your account and this Agreement immediately and without notice if you fail to renew your subscription, fail to pay any fees or invoices for any OlyPen services when due or otherwise fail to comply with this Agreement and/or the OlyPen Terms of Service Agreement (see Other OlyPen Services, Sec. 11.2 below). OlyPen accepts no liability and no responsibility for loss of data as a result of termination (see Effect of Termination, Sec 6.5 below).
6.4 Termination. On termination or expiration of your account or this Agreement, you will no longer have the right to continue to use the Software and the Services, and you will no longer be able to access and restore your backup data. You acknowledge and agree that OlyPen has no obligation to provide your or anyone else with a copy of your Back-up and may automatically purge your Back-up from OlyPen systems. OLYPEN MAY, IN ITS SOLE DISCRETION, DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE OLYPEN SECURESAFE PRODUCTS, INCLUDING SUSPENDING OR TERMINATING YOUR LICENSE AND ACCOUNT WITH OLYPEN IF YOU ARE USING THE OLYPEN SECURESAFE PRODUCTS IN A MANNER NOT INTENDED OR IN VIOLATION OF LAW. OlyPen accepts no liability and no responsibility for loss of data as a result of termination (see Effect of Termination, Sec 6.5 below).
6.5 Effect of Non-Renewal or Termination. Upon any non-renewal, termination, or expiration of your subscription to the OlyPen SecureSafe products: * the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the OlyPen SecureSafe Products; * the OlyPen SecureSafe Products may be disabled by OlyPen without notice to you, and; * You will no longer have the right to access or retrieve your Back-up.
7.0 Changes to the Service and Agreement. OlyPen reserves the right at any time to modify, suspend, or discontinue providing the Service, in whole or in part, without notice. While not obligated to do so, OlyPen will use commercially reasonable efforts to notify you of any such action by sending you an e-mail or by posting relevant information on the Site. OlyPen reserves the right to modify this Agreement at any time, and each such modification will be effective upon posting on the Site. Your continued use of any Products following any such modification constitutes your agreement to be bound by the modified terms of the Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST STOP USING THE PRODUCTS IMMEDIATELY AND NOTIFY OLYPEN.
8.0 Enhancements. OlyPen may (i) automatically update the OlyPen SecureSafe Products without your prior notice, (ii) upgrade, enhance, change and/or modify the OlyPen SecureSafe Products, or (iii) discontinue or retire the OlyPen SecureSafe Products or any aspect or feature of the OlyPen SecureSafe Products, including the types of files and data that are backed-up or the availability of OlyPen SecureSafe Products on any particular device or communications service at any time and from time-to-time in its sole discretion.
9.0 Disclaimer of Warranties. YOU SPECIFICALLY AGREE THAT YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK, AND THE PRODUCTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. OLYPEN, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, OLYPEN, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES MAKE NO WARRANTY THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE PRODUCTS WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE; AND (D) ANY DEFECTS OR ERRORS IN THE PRODUCTS WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE PRODUCTS ARE NOT INTENDED OR SUITABLE FOR USE IN APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
10.0 Limitation of Liability. YOU SPECIFICALLY AGREE THAT OLYPEN, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY YOU ARE SEEKING DAMAGES AGAINST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS OR IN ANY WAY RELATING TO THE PRODUCTS. IF YOU HAVE A PAID ACCOUNT, YOU AGREE THAT THE AGGREGATE LIABILITY OF OLYPEN, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO THE AMOUNT PAID FOR THAT ACCOUNT DURING THE TWO (2) YEAR PERIOD BEFORE THE RELEVANT CLAIM OR TWO-HUNDRED US DOLLARS ($200), WHICHEVER IS LOWER. IF YOU HAVE A FREE ACCOUNT, YOU AGREE THAT THE AGGREGATE LIABILITY OF OLYPEN, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO TWENTY US DOLLARS ($20). YOU SPECIFICALLY AGREE THAT THIS DAMAGES LIMITATION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND OLYPEN.
11.0 General Provisions.
11.1 Headings. The headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement.
11.2 Other OlyPen Services. If you are a Subscriber of other OlyPen services as defined in the OlyPen Terms of Service Agreement (OlyPen TOS), this Agreement does not supersede nor negate any of the terms of the OlyPen TOS. To the contrary, if you are a Subscriber of other OlyPen services, this Agreement serves as an addendum to the OlyPen TOS, applying strictly to OlyPen SecureSafe Products. The OlyPen Terms of Service Agreement as used in this Agreement refers to the then-current OlyPen Terms of Service Agreement as posted at: http://startpage.olypen.com/customercare/tos.php.
11.3 Governing Law. This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Washington, without regard to conflicts of law provisions. You agree that the federal and sate courts of Washington alone have jurisdiction over all disputes arising under this Agreement and you consent to personal jurisdiction of those courts with respect to any other disputes arising under this Agreement.
11.4 Dispute Resolution and Arbitration. You agree that any dispute or claim arising out of or relating to the Services, Equipment, Software, or this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration administered by the American Arbitration Association under its commercial arbitration rules. The Arbitrator of any dispute or claim brought under or in connection with Agreement shall not have the power to award injunctive relief. The sole exceptions to arbitration are that either party may pursue claims: (1) in small claims court that are within the scope of its jurisdiction, provided the matter remains in such court and advances only individual (non-class, non-representative, non-consolidated) claims; and (2) in court if they relate solely to collection of any debts you owe to OlyPen.
11.5 Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (a Force Majeure Event), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.
11.6 Enforcement and Attorneys Fees. In the event that either party to this Agreement shall bring a claim in arbitration to enforce any rights hereunder, the prevailing party shall be entitled to recover costs and reasonable attorneys fees incurred as a result of such claim.
11.7 Severability. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. Neither partys failure to insist upon strict performance of any provision of this Agreement will be construed as a waiver of any of its rights hereunder.
OlyPen SecureSafe Terms of Service
Rev-1 09/23/2011