Terms and Conditions for Online Backup Services
Regardless of whether you sell your service to individuals or businesses you will want to have your customers agree to your Terms and Conditions of Service. This is a legal document also referred to as an End User License Agreement (EULA).
The Online Backup Guide for Service Providers is a complete 196-page guide on starting and operating an Online Backup Service – the latest revision of Rob Cosgrove’s industry defining RBS Book originally published in 1987. The entire book is being published here, chapter by chapter.
Your Terms and Conditions document spells out exactly what your customer is going to get, and under what conditions. It acts as a Software License Agreement, a Copyright Notice, a Limitation of Liability, a Fair Use Agreement, Privacy Statement, and Export Restriction Agreement, among other things.
This document is usually included in the Client software installer – it is that document in fine print that you have to select “I AGREE” to before the software will install. You should also post a copy on your web site, and the most careful Online Backup Services have customers agree to it before they can download the software.
This document states (among other things) that you (as the Service Provider) have no responsibility for the data you store, you have no responsibility to return it to the customer, the customer can’t sue you for anything, and just in case he does, the limit of the judgment is what the customer has paid you for the service, and he has to come to your location to sue you.
For Personal accounts, your Terms and Conditions should not include a Service Level Agreement. For business customers, it probably should, since an SLA is a good selling point.
Following is the Terms and Conditions document used by MyBackupSpace, (mybackupspace.com) an example Personal Online Backup Service that I put online to test some concepts for my Mercury Online Backup platform.
End User License Agreement
Last update: 28 October, 2009
PLEASE READ THIS AGREEMENT CAREFULLY
This license agreement is a legal agreement between you (either an individual or an entity) and MyBackupSpace DBA MyBackupSpace. By downloading the software, clicking an “ACCEPT” button during installation or purchase, and every time you use the software, you are agreeing to be bound by the terms of this agreement.
DEFINITIONS: (a) “MyBackupSpace,” “we,” and “us” means MyBackupSpace DBA MyBackupSpace, its subsidiaries, owners, investors, vendors, suppliers, executives and employees. (b) “You,” “subscribers,” “your”, “user,” and “users” means the individual or entity using MyBackupSpace products or services. (c) “Data,” means all files you have backed up to the MyBackupSpace service, and any other records associated with your MyBackupSpace account. (d) “Service” means all services provided by MyBackupSpace. (e) “Software” means the MyBackupSpace application(s) installed on your computer.
GRANT OF LICENSE: This License Agreement permits you to use one copy of the MyBackupSpace software on one computer, for purposes of accessing the MyBackupSpace Service only. If you have signed up for multiple accounts with MyBackupSpace, this License Agreement permits you to use one copy of the MyBackupSpace software on each computer, one computer per account. This license is non-transferable, and non-sublicensable.
COPYRIGHT: The SOFTWARE and accompanying materials (including any images, “applets”, photographs, animations, video, audio, music and text incorporated into the SOFTWARE and accompanying materials) is owned by Online Holdings, LLC. and licensed to MyBackupSpace. It is protected by United States copyright laws and international treaty provisions and all other applicable national laws. Therefore, you must treat the SOFTWARE and accompanying materials like any other copyrighted material (e.g. a book or musical recording) except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes or (b) transfer the SOFTWARE to a single hard disk provided you keep the original solely for backup or archival purposes. You may not copy the documentation accompanying the SOFTWARE. You may not repackage the Software for further distribution by any means.
ACCEPTABLE USE: You are solely responsible for your behavior and your data stored and retrieved using the MyBackupSpace Service. You agree to indemnify, defend, and hold harmless MyBackupSpace and Online Holdings, LLC. from any and all loss, cost, liability, and expense arising from or related to your data, your use of the Service, or your violation of these terms.
The MyBackupSpace Software and Service are made available to you only for your personal use or for use within your own business (depending on the version of MyBackupSpace to which you subscribe), which use must be in compliance with all applicable laws, rules and regulations and must not infringe or violate third party rights. Any unauthorized use of the MyBackupSpace Software, Service, servers or networks is a violation of this Agreement and certain federal and state laws. Such violations may subject the unauthorized subscriber or user and his or her agents to civil and criminal penalties.
SERVICE-SPECIFIC RESTRICTIONS ON USE: Certain MyBackupSpace products and subscription levels have certain limitations, including and not limited to the types of files you can back up, the schedule on which your backups operate, the bandwidth available to you, and the features available to you. You agree not to circumvent these limitations in any way, including and not limited to, and circumventing settings that do not have a user interface.
FILE PROTECTION: You are solely responsible for protecting the files on your computer by installing anti-virus software, updating your applications, password protecting your files, and preventing third party access to your computer. You understand that MyBackupSpace may back up files that are no longer usable due to corruption from viruses, software malfunctions or other causes. This might result in you restoring files that are no longer usable. If your Data contains viruses or other malicious code, MyBackupSpace may deactivate this code as a by-product of its encryption features; however, MyBackupSpace will back up this code along with your Data. Upon restoration, this code may become re-activated. Such viruses and malicious code backed up by any one user will not affect other users while it is stored with the MyBackupSpace service.
FILE RETENTION POLICY: MyBackupSpace may set file retention policies for some accounts, according to the features of the account to which you subscribe. Your account may allow you to edit these policies, which determine how long your files are stored on the MyBackupSpace servers before they are deleted. You agree to carefully read and understand these file retention policies as they relate to your subscription, and to hold MyBackupSpace harmless when it deletes data that falls outside the File Retention Policy associated with your account.
STORAGE SPACE QUOTA: Certain MyBackupSpace accounts have storage quotas. You understand that if you run out of space on the MyBackupSpace Servers, your backups will stop running until more space is made available to you through your purchase of more space, or if you delete files from the Server, or if files are deleted automatically as a result of the File Retention Protocol you have selected.
USERNAMES, PASSWORDS AND ENCRYPTION KEYS: MyBackupSpace may require you to establish a Username, Password, and (optionally) an Encryption Key to protect your account and your Data stored with MyBackupSpace. You are solely responsible for any consequences that arise in whole or in part from your compromise of your Username, Password, or Encryption Key. MyBackupSpace assumes no liability to supply you with your Username, Password, or Encryption Key. You understand and agree that MyBackupSpace cannot access your Data, and that if you forget or lose your Username, Password, or Encryption Key, MyBackupSpace may not be able to restore your Data.
Your Data is encrypted before it is sent to the MyBackupSpace data centers, and remains encrypted when it is stored there. If you used a Private Encryption Key, MyBackupSpace cannot view the data you back up using the MyBackupSpace service. If you forget your Private Encryption Key, you will not be able (and MyBackupSpace cannot assist you) to restore your Data.
CONSENT TO COLLECT INFORMATION: The MyBackupSpace service may collect non-personally identifiable information that resides on your computer including, and not limited to, statistics relating to backup times and status, performance metrics relating to the MyBackupSpace Software, configuration settings, but not the contents of your files. The information collected will be used only to improve our service to you.
TERM: This Agreement becomes effective when you register for MyBackupSpace services. It remains in effect until your account is terminated.TERMINATION: You may terminate this Agreement at any time by uninstalling the MyBackupSpace Software and canceling your subscription, following the instructions on the MyBackupSpace web site.
This Agreement automatically terminates if you fail to comply with this Agreement. MyBackupSpace reserves the right to refuse or discontinue any subscription at any time at its sole discretion. You agree that, upon termination, you will uninstall the MyBackupSpace Software and that your subscription and access to the MyBackupSpace service will immediately terminate.
Upon termination of paid accounts, MyBackupSpace will use reasonable efforts to make your data available for you to download for a period of three (3) days. Notwithstanding, MyBackupSpace is under no obligation to provide you with a copy of your Data after termination and may, at its sole discretion and without liability, destroy or retain any Data after termination.
The terms of the Sections entitled Consent to Collect Information, Copyright, Disclaimer of Warranties, Limitation of Liability, and Miscellaneous will survive termination of this Agreement.
RESTRICTED USES: You may not install or use this software on computers that are connected to life-saving or life-support medical equipment, nor on any equipment used in the production or administering of drugs or breathable gasses, nor on any equipment used in connection with nuclear, power generation, aviation or mass transit applications, nor with any application or on any computer that, through malfunction or misuse, could directly or indirectly cause personal injury, death, physical damage or destruction.
OTHER RESTRICTIONS: You hereby agree not to reverse engineer, decompile or disassemble the Software. You agree not to analyze the software, its data files, or transmission protocols in an attempt to discover its systems and methods of operation. You agree not to communicate to others any discovery of technical procedures, systems and methods, or protocol of the Software or Service. You hereby agree that the Software does not infringe on any patent, copyright, trademark, or other intellectual property rights under your control either directly or indirectly, or under the control of any company or other entity to which you report. You agree to hold harmless MyBackupSpace, its suppliers, vendors, owners and employees in any intellectual property dispute that might arise from the discovery or disclosure of such information by you as a result of a violation of this paragraph. You may not use the MyBackupSpace Software with any service or server other than the MyBackupSpace Service. You may not access the MyBackupSpace Service with any software not provided to you by MyBackupSpace.
CUSTOMER SUPPORT: MyBackupSpace may, at its sole discretion, provide customer support through whatever means and on whatever schedule we set. This means that live customer support might not be provided during certain hours or on certain days (for example, US National Holidays), and might be provided only through certain channels or vehicles such as email, live online chat, telephone, remote control, or an automated online help system. We may offer support using technicians in the USA or any other country.
MyBackupSpace cannot provide support for, and is not responsible for, problems affecting the Service which are caused by any external software, hardware, or service. This includes routers, firewalls, network interface devices, Internet connections, antivirus software, disk management software, or any other software, hardware, or service that might hamper the proper operation of the MyBackupSpace Software or Service. You agree to properly and promptly report support issues through the proper channels, to completely explain your issue, to read your email or check with an Online Help Desk System (if available) to view our response, and to reply promptly when we request further information and/or offer suggestions.
MyBackupSpace is not responsible for your receipt of our emails, nor of our receipt of your emails. If you are not receiving our emailed replies, check your spam filters, or make sure we have your correct email address. Emails from MyBackupSpace come from an email address at varbackup.com or from firstname.lastname@example.org. If we are not receiving your emails, make sure you are sending them to the correct address, that your emails are not being blocked by outbound spam filters, and that your mail server is not on any spam lists or real time black hole lists. Because of difficulties imposed by spam software, we strongly suggest you contact us through one of the methods on the Contacts page on our website.
REMOTE SUPPORT: MyBackupSpace may, at its sole discretion, offer you the option of having a support technician remotely control your computer in order to resolve an issue. You will have the option of accepting or declining this offer. MyBackupSpace cannot access your computer without your approval. If you approve, the support technician will then be able to control your mouse and keyboard, view your monitor, and have full access to your computer and its unencrypted data. (This service may not be available for Mac computers.)
In this case, you hereby give special permission for MyBackupSpace to access your personal and unencrypted data on your computer. You hold MyBackupSpace, Online Holdings, LLC, and the attending support technician harmless for any liability that might arise as a result of a remote control operation, including and not limited to disclosure of personal information, disruption of business, and loss of data. Our remote control software will be automatically removed from your computer when our technician disconnects. You hereby re-affirm your acceptance of the sections of this Agreement entitled LIMITED WARRANTY, CUSTOMER REMEDIES, and NO OTHER WARRANTIES and agree that those sections apply fully to your remote control session.
SOFTWARE UPDATES: From time to time MyBackupSpace releases updates for the Software. The Software has the ability to automatically update itself by downloading an update and applying it. However, because firewalls, routers, and anti-virus software can sometimes block the download, MyBackupSpace is not liable for the failure of this update process. You are responsible for making sure your installation of the Software is up to date. MyBackupSpace may, at its sole discretion, refuse to provide support (but not Services) for software that is older than the current version.
U.S. GOVERNMENT RESTRICTED RIGHTS: The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software– Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Online Holdings, LLC / 2565 Horizon Lake Dr. St 110 / Memphis, TN 38133 USA.
EXPORT CONTROLS: You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, North Korea, Syria or any other country to which the U.S. 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 Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
CHANGES TO THIS AGREEMENT AND SERVICE: MyBackupSpace reserves the right to make changes to, modify, suspend, or discontinue providing service in part or in whole at its sole discretion. MyBackupSpace will make reasonable efforts to notify you of any such event by sending an email to the email address associated with your MyBackupSpace account and/or by posting a notice on the MyBackupSpace website. Under no conditions will MyBackupSpace be liable to you or to any third party for any event defined in this paragraph. MyBackupSpace reserves the right to modify this Agreement without liability to you. The modified agreement will become effective for existing subscribers 15 days after it has been posted on the MyBackupSpace web site. You agree to be bound by the terms of the modified agreement. If you do not agree, you must terminate your subscription immediately.
DISCLAIMER OF WARRANTIES: MyBackupSpace SOFTWARE AND SERVICE ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. MyBackupSpace EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL MyBackupSpace, Online Holdings, LLC, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MyBackupSpace HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF MyBackupSpace, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO MyBackupSpace FOR THE SOFTWARE OR SERVICES.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
ENTIRE AGREEMENT: This instrument is the entire agreement between you and MyBackupSpace. Oral changes and agreements have no effect. This agreement may be altered only by a written agreement signed by an executive of MyBackupSpace.
ACCEPTANCE OF THESE CONDITIONS: By clicking the “I AGREE” button or typing “I AGREE” in the space provided, or by downloading, installing or using the Software, you accept the terms of this license agreement. You agree that you fully understand the capabilities of the Software and Service, and the terms of this Agreement, and that you accept the Software and Service as-is. By accepting this license, you agree that you will not reverse any credit card charge for this purchase.
MyBackupSpace may, in its sole discretion, transfer or assign all or any part of its rights in the MyBackupSpace Software or Service, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, for any MyBackupSpace Software or Services, licenses, or other contracts.
This agreement shall be governed by the laws of the state of TN and shall inure to the benefit of MyBackupSpace and any successors, administrators, heirs, and assigns. Any action or proceeding brought by either party against the other arising out of or related to this agreement shall be brought only in a STATE or FEDERAL COURT of competent jurisdiction located in TN. You hereby consent to in personam jurisdiction of said courts. The foregoing notwithstanding, MyBackupSpace retains the right to institute action in any court of competent jurisdiction to enforce its rights under this Agreement.
The most recent version of this End User License Agreement is on the MyBackupSpace web site.
Rob Cosgrove is the President of Remote Backup Systems, founder of the Online Backup Industry, and a vocal advocate for maintaining the highest standards in Online Backup software. His latest book, the Online Backup Guide for Service Providers: How to Start and Operate an Online Backup Service, is available online now, on Amazon.com, and at bookstores.
Remote Backup Systems provides brandable, scalable software and solutions to MSPs and VARs enabling them to offer Online Backup Services.