These terms and conditions (the "Terms and Conditions") apply to your receipt and use of Software and Services (as defined below) from Spare Backup, Inc. It is your responsibility to carefully read all terms and conditions, including all of the information below.
If you have any questions relating to these Terms and Conditions please contact our customer service representatives by e-mail by clicking here , or call us at any time at [0845-226-4367.] Please note that all calls to our customer services representatives will be recorded for quality monitoring and training purposes.
"Device" shall mean those PC or Mobile Clients that are capable of (i) receiving and performing a stream and/or a conditional download, (ii) communicating with SPBU in order to receive a User's library and to request media and (c) receiving digital media content from content distributors. "Services" shall mean the products and services provided by SPBU, together with any associated support services, in each case as provided from time to time.
"Software" shall mean any software provided by SPBU at any given time, whether downloaded to your Device, provided to you on CD or another form of removable media, or utilized online as part of the Services. The Software includes, but is not limited to, SPBU's PC backup and Mobile Client programs and the CM Tools and any and all copies or portions of each, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the Software, if any, and any third party software contained in it.
"Services" shall mean the products and services provided by SPBU, together with any associated support services, in each case as provided from time to time.
"User" shall mean any registered user of the Services.
The Services are intended solely for Users who are thirteen (13) years of age or older, and any registration, use or access to the Services by anyone under thirteen (13) is strictly prohibited and in violation of this Agreement. If you are under eighteen (18) years of age you may use the Service only if you either are an emancipated minor or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and agree to abide by and comply with this Agreement. The Service is not available to any Users which SPBU has previously removed from the Service.
Software Licence Grant
The Software and Services are licensed, not sold, to you. Your licence of the Software and Services that you obtain from SPBU is subject to the Scope of Licence set forth below, and you agree that those terms will apply to each Software and Service that you license. You acknowledge that the licence(s) you purchase are subject to the Agreement.
Scope of Licence. This licence granted to you for the Software by SPBU is limited to a non-exclusive, non-transferable licence to use the Software on a total of no more than five (5) Devices (including no more than two (2) PCs)that you own or control and as permitted by the Usage Rules set forth below (the "Usage Rules") and to use the Services for your own, non-commercial purposes in accordance with these Terms and Conditions. This licence does not allow you to use the Software on any Device that you do not own or control, and you may not distribute or make the Software available over a network where it could be used by more than one Device at the same time.
In order to use the Services, you will be required to download certain enabling Software, which may include certain third party software. SPBU grants to you a non-exclusive, non-transferable licence to install and use the Software solely for your use of the Services. In addition, you agree to comply with any applicable third party's licence terms with respect to any required third party software. Except as expressly permitted by applicable law, the Software may only be reproduced, installed and used on the number of computers and clients for which you are licensed and for which you have paid, as set forth in these Terms and Conditions. You may make one (1) copy of the Software for backup purposes; otherwise, you may not reproduce any part of the Software. Except as expressly permitted by applicable law, you shall not: (1) cause or permit any reverse engineering, decompilation, modification, adaptation, translation, attempt to derive source code or disassembly of the Software, or create any derivative works based on the Software or Services; (2) sell, rent, lease, timeshare, lend, sublicense, distribute, assign or otherwise transfer any rights in the Software or under the Agreement; or (3) disclose results of any benchmark tests of any Software to any third party.
The terms of the licence will govern any upgrades provided by SPBU that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate licence in which case the terms of that licence will govern.Usgae rules
Your use of the Services and Software is conditional upon your prior acceptance of the terms of this Agreement and all applicable end-user licence agreements.
You agree that your licence of the Software constitutes your acceptance of and agreement to use the Software solely in accordance with the Usage Rules, and that any other use of the Software may constitute a copyright infringement and/or a breach of contract. The security technology, if applicable, is an inseparable part of the Software. The Usage Rules shall govern your rights with respect to the Software in addition to any other terms or rules that may have been established between you and any third party.
You acknowledge that some aspects of the Software and administering of the Usage Rules entail the ongoing involvement of SPBU. Accordingly, in the event that SPBU changes any part of the Software or discontinues support of the Software, which SPBU may do at its election, you acknowledge that you may no longer be able to use the Software to the same extent as prior to such change or discontinuation, and that subject to the Unfair Contract Terms Act 1977, SPBU shall have no liability to you in such case or SPBU's liability to you in such case shall be limited to the refunding of such proportion of the subscription/purchase price paid by you as SPBU shall reasonably consider to be fair and equitable compensation for such change or discontinuance.
Server space and personal media
Upon registering for the Services, your account will be provisioned with dedicated space on a server where you may store your media and/or information regarding your rights to media ("Personal Server Space"). The CM Tools will catalogue unidentified media as your personal media ("Personal Media"). You acknowledge that by using the Services you are directing SPBU to upload and store your Personal Media stored in your Personal Server Space. SPBU does not represent or guarantee the Services will successfully upload or support your Personal Media.
In using the Services and your Personal Server Space, you agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Software or Services in any medium, including without limitation by any automated or non- automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Services in a manner that sends more request messages to the servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on SPBU's infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures SPBU may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
You may not store Personal Media on your Personal Server Space that (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that SPBU deems to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. Any Personal Media on your Personal Server Space shall not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy. SPBU reserves the right, but is not obligated, to reject and/or remove any Personal Media that SPBU believes, in its sole discretion, violates these provisions.
Changes to services terms and conditions
You acknowledge and agree that SPBU, at its sole discretion may, subject to the Unfair Contract Terms Act 1977, reasonably change, modify, amend, suspend or discontinue any aspect of the Services, including its pricing at any time. SPBU reserves the right to impose limits on certain features of the Services including limits on excessive use of storage capacity, at any time. Further, you acknowledge and agree that SPBU may amend any or all of the Terms and Conditions applicable to the Software and Services at any time, at SPBU's sole discretion. Any amendment of the Terms and Conditions will be applicable to all current Users at the time it is posted. You should review the Terms and Conditions periodically to obtain notice of any changes. Continued use of the Software and Services constitutes acceptance of SPBU's then-current Terms and Conditions, including any amendments to them. SPBU may make any such change, modification, amendment, suspension, discontinuance or imposition of limitation without notice to you or any third party. Subject to the Unfair Contract Terms Act 1977, SPBU shall have no liability to you or such third party in respect of the making of any such change, modification, amendment, suspension, discontinuance or imposition of limitation / SPBU's liability to you or such third party in respect of the making of any such change, modification, amendment, suspension, discontinuance or imposition of limitation on SPBU's liability shall be limited to the refunding of such proportion of the subscription/ purchase price paid by you as SPBU shall reasonably consider to be fair and equitable compensation.
Password and security
After you register to use the Services, you will be prompted to select a user name and a password. Then, the installation program will generate a unique Data Encryption Key number (the "Data Encryption Key" or the "Spare Key") for your use in securing your stored data. For your security, SPBU will send a copy of your Spare Key to an escrow company (the "Key Manager"). You must have the Data Encryption Key in order to retrieve your information and data stored with SPBU. You are solely responsible for maintaining the confidentiality of your user name, user password and Data Encryption Key, and you agree to use the Services at your sole risk and responsibility. To retrieve a lost user name, password or Data Encryption Key number, please see the FAQ's posted on the SPBU Website at [www.sparebackup.com. ] You agree that you shall immediately notify SPBU in writing or by electronic mail of any unauthorized use of your user name, user password or Data Encryption Key. Further, you acknowledge that SPBU will not maintain copies of your Data Encryption Key and that the Key Manager is not affiliated in any way with SPBU. As such, you acknowledge and agree that SPBU will have no liability or responsibility whatsoever for any damages or losses caused or alleged to have been caused by the Key Manager.
Security of stored information
SPBU will use reasonable efforts to prevent the unauthorized disclosure or destruction of your stored information and data; however, no archival or security system is either impenetrable or infallible. Except in extraordinary circumstances, or where legally required to do so, SPBU will not seek to decrypt your data, and will make reasonable efforts to preserve your data in the same format in which it was received from you. Notwithstanding the foregoing, SPBU does routinely collect and analyze metadata regarding User files designated for archival storage using the Service, including, without limitation, header information, checksum quantities, file size, file type, and archival dates. This information is used by SPBU to gauge service levels and application performance, and, in some instances, for data recovery purposes. SPBU will not, however, be responsible for any matter beyond its reasonable control, including, without limitation, unauthorized access to your information or data and/or functions provided or performed by third parties. In the event that SPBU is served a subpoena or is otherwise legally compelled to provide access to your stored information, SPBU will use reasonable efforts to provide you with notice of the same (as provided below) as soon as reasonably practical to enable you to take any action you deem necessary to prevent such access, all at your sole expense and without SPBU cooperation or assistance.
Intellectual property and right to use
You acknowledge and agree that all copyright, trademarks and all other intellectual property rights in all material or content supplied by SPBU shall remain at all times vested in SPBU and /or its licensors. You are permitted to use this material only as expressly authorized in writing by SPBU.
You acknowledge and agree that the Software and Services are made available for your personal non-commercial use consistent with the licence provided to you in this Agreement. Any other use of the Software and Services is strictly prohibited. You agree not to (and agree not to assist or facilitate any third party to) transmit, publish, display, distribute or commercially exploit the Software or Services.
Limitation of liability/indemnity
The following provisions set out the entire financial liability of SPBU (including any liability for the acts or omissions ofits employees, agents and sub-contractors) to you in respect of:
(a) Any breach of the Agreement by SPBU or its employees, agents or subcontractors; (b) Any use made by you of the Software or Services or any other products or services supplied to you by SPBU; and (c) Any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement and/or your use of the Software and Services.
Nothing in the Agreement excludes or limits the liability of SPBU: (a) For death or personal injury caused by the negligence of SPBU; or (b) Under section 2(3), Consumer Protection Act 1987 (if and to the extent that the same may apply); or (c) For any matter in respect of which it would be illegal for SPBU to exclude or attempt to exclude its liability; or (d) For fraud or fraudulent misrepresentation.
The Software and Services are provided on an "as is" and "as available" basis. SPBU not represent or warrant that the Software and Services will meet your requirements or that its performance will be uninterrupted, timely, secure or error-free, or that defects will be corrected. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
SPBU's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the purchase price of the licence of the Mobile Client and CM Tools, excluding taxes and fees.
SPBU shall not be liable to you for loss of profit, loss of business, loss of data or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Agreement and/or your use of the Software or Services.
For the avoidance of doubt, no party, including CM, shall have any liability toward you in relation to the provision of the Software and Services other than SPBU.
No action may be brought for any breach of the Agreement or relating to the Software or Services more than one (1) year after the accrual of such cause of action.
You release, and will defend and indemnify SPBU and its officers, directors, employees, agents, successors and assigns, from and against all claims or causes of actions, and any liabilities, obligations, judgments, fines, costs and expenses (including reasonable attorneys' and expert witnesses' fees and costs) incurred by an indemnified party due to such claim or cause of action arising out of (i) any breach of the Agreement by you (ii) your use of the Software or Services or (iii) the use by any other persons using the Software which you originally obtained.
By downloading the Software and using the Services, you agree that the laws of England and Wales will exclusively govern the construction of the Agreement and any dispute of any sort that might arise between you and Spare Backup. All disputes arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.
SPBU shall have no liability to you under the Agreement if SPBU is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving its workforce or that of any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. SPBU will use reasonable commercial efforts to notify you of any such event and its expected duration.
The Agreement will automatically terminate when your services agreement with Carphone Warehouse Limited expires or is terminated for any reason. If the Agreement terminates, you must stop using the Software and Services immediately.
Third party rights
The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999
Any failure or delay by either party in exercising any right or remedy in one or many instances will not prohibit a party from exercising it at a later time or from exercising any other right or remedy.
This Agreement supersedes and terminates any and all prior agreements, if any, whether written or oral, between SPBU and you with respect to the subject matter contained herein. The Agreement constitutes the final written expression of all terms of the Agreement, and it is a complete and exclusive statement of those terms.
If any part of the Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the remainder of the Agreement and shall not affect the validity and enforceability of any of the remaining provisions of the Agreement.