This Agreement made between Synectics Business Solutions, Inc., a corporation incorporated under the laws of the province of Ontario ("Synectics") and the Client ("Client") who proceeds with subscribing to the BackJack™ Online Backup Service ("BackJack"). Whereas:
- Synectics provides online backup services for the Macintosh operating system through its proprietary software known as BackJack™
- The Client desires to use BackJack on the terms and conditions of the Services as set out below.
Article 1 - Interpretation
1.1 - Definitions. For purpose of this Agreement, the following terms shall have the following meanings:
- "Account" means the internal unique BackJack alpha or numeric identification assigned to the Client (generated from portions of the Client's email address) containing all pertinent information related to the Client for purposes of providing the Services;
- "Agreement" means this Agreement, as amended from time to time;
- "BackJack" means software and documentation, together with all updates, enhancements, modifications and fixes thereto, which are owned by Synectics and made generally available to the Client in connection with use and performance of the Services;
- "Internet" means the world-wide network of computers commonly understood to provide some or all of the following features, among others: electronic mail, file transfers through File Transfer Protocol ("FTP"), and World Wide Web access;
- "Pricing Information" means all pricing information provided to the Client as a part of the subscription process or otherwise provided by notice to the Client via BackJack Web Site at www.backjack.com;
- "Service" means the services as described in Section 2 hereof;
- "Software" means BackJack and the Third Party Software;
- "Third Party Software" means software and documentation, together with all updates, enhancements, modifications, and fixes thereto, which are owned by third parties and made generally available from time to time by Synectics under sublicense to the Client in connection with the Service;
- "Web Server" or "Server" means the computers that Synectics uses to provide the Service hereunder;
1.2 - Interpretation. In this Agreement, words importing the singular number include the plural and vice versa and words importing gender include all genders. The division of this Agreement into articles, sections and subsections and the insertion of headings are for convenience of reference only and shall not affect its construction or interpretation. This Agreement does not and shall not be construed to create any partnership, joint venture or agency whatsoever.
1.3 - Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties. There are no warranties, covenants, representations or other agreements between the Parties in connection with the subject matter hereof except as specifically set forth in this Agreement
1.4 - Governing Law. This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. Both Parties agree that the Courts of the Province of Ontario shall have non-exclusive jurisdiction to preside over actions commenced under this Agreement.
Article 2 - License and Service
2.1 - Grant of License. Synectics hereby grants to the Client a non-exclusive, worldwide, non-transferable license to use the Software for its own use only on the terms and conditions set out herein, including (a) the object code version of BackJack, on personal computers for which the Client controls access to BackJack, solely and exclusively to the extent necessary to enable the Client to access and use the Services; and (b) the object code version of Third Party Software solely and exclusively in connection with the Client's use of the Service, and subject in all events to all terms, conditions and limitations on use concerning such Third Party Software, of which the Client is notified from time to time. For greater certainty, It is acknowledged by the Client that BackJack and all intellectual property rights contained therein shall remain the sole and exclusive property of Synectics, and except as set forth in this Agreement, the license granted hereby does not give the Client any rights to sell or further license the Software, to copy in whole or in part any of the Software, or to reverse engineer, decompile, disassemble, re-engineer or otherwise create or permit, allow or assist others to use any of the Software, nor does the Client acquire any right, title or interest in or to BackJack.
2.2 - Services
- Synectics shall provide backup services for the Client's data, utilizing the Internet and BackJack, on the terms and condition as set out herein. The BackJack software automatically compresses and encrypts the Client's data (using a 128-bit CAST encryption algorithm), prior to sending its files to the BackJack servers and transmits all Client data and information using secure internet connections;
- The Client agrees and acknowledges that the minimum Macintosh operating system requirements for all of Client's computers and users of the BackJack Services and version 5 software will be Mac OS X 10.4.10;
- Synectics shall provide support for Software and Services at no additional cost relating to the use of the Services, including operational assistance and support, and reinstallation and recovery. Synectics does not support third part Mac products or the operating system itself;
- Synectics shall provide support to the Client Monday to Friday from 10:00 AM until 6:00 PM Eastern (7am - 3 pm Pacific) via e-mail at firstname.lastname@example.org, or via phone - toll-free in North America at 1-888-421- 0220 or Internationally at + 1-519-650-1559. A representative is on call 24 hours a day, 7 days a week for any emergency situation. During regular support hours, all support issues will be responded to in the order of urgency. Synectics will use its best efforts to respond to all support issues within 4 hours during regular support hours. If Client has an emergency situation (backup failure, recovery situation, etc.) that requires immediate assistance outside of Synectics' support hours, Client is advised to call and leave a message indicating the support issue and its urgency. Only phone calls are responded to outside of Synectics' support hours (evenings and weekends).
- Synectics agrees to allow the Client to back up and retrieve data via the Internet seven (7) days per week twenty-four (24) hours per day. Synectics agrees that the Client shall have access to the full capacity of Synectics' bandwidth for the purpose of transferring its data to the servers.
- Synectics does not advise or direct the Client with respect to what data should be included in the back-up and assumes no responsibility whatsoever for any data which is not backed-up, nor for data or information which Client deletes from its computer prior to ensuring the backed up fies were successfully transferred to the Synectics' servers. Files deleted from the Server(s) will have no affect on the files stored on the Client's computer. If more than one version of a file has been backed up, BackJack will allow the Client to retrieve one or more versions to store them on the Client's computer. Client acknowledges that recovering data from the Synectics' server does not constitute deletion of the data from the Synectics' server.
- Client acknowledges that use of the Service may include the automatic provisioning of updates to the Software from time to time. The Client acknowledges that they can prevent this from occurring via the software's Preferences window.
- Client acknowledges that they will be permitted to store up to 10 revisions of any specific file for a period of 30 days, after which time, if no further revisions have been completed, all versions of such file, save and except the most recent version, shall be deleted from the storage by Synectics. If an individual file is moved or removed from the Client's local storage or hard drive, it will remain on Synectics' servers for no more than 30 days, after which time such file shall be deleted by Synectics. The BackJack software WILL NOT ARCHIVE DATA.
Article 3 - Fees and Payment
This section outlines the Billing and Payment Policy for BackJack's Version 5.
3.1 - Annual Subscription Fees. When a Client subscribes to BackJack, the Client will be required to confirm: (a) the total number of Users they would like to protect and (b) the total number of 10 GB Storage blocks they would like to purchase. Pricing is based on the annual rate per User and the annual rate per storage block. The minimum storage space per User is one 10 GB block; therefore, the number of storage blocks purchased cannot be less than the total number of Users on the Account (ie. if Client has 10 Users on the Account, they need a minimum of 10 corresponding blocks of storage). When a Client subscribes , Synectics will honor the annual pricing for 1 year from the date of the subscription (specifically, at the point the subscription process is completed via the BackJack website with full contact and credit card information provided). Synectics' will also honor the same rate on each 10 GB Storage block pricing on any additional Storage blocks Client needs to purchase throughout the duration of their Annual subscription.
3.2 Annual Billing Period & Renewal. The Client's invoice period starts at 12:01 AM EST (Eastern Standard Time) on the date they subscribe (specifically, at the point the subscription process is completed via the BackJack website with full contact and credit card information provided) and ends one year later on the same date and time. Synectics will notify Client, via email, prior to the end of their Annual term so that Client can choose to renew the subscription or cancel (the renewal is not automatic). As per above, Synectics will honor the same pricing on any additional Storage blocks Client needs to purchase throughout their Annual term; however, if Client opts to renew their subscription, the price is subject to change and will be based on Synectics' current price offering via www.backjack.com.
3.3 Day Money-Back Guarantee. All initial fees paid are 100% refundable should Client cancel within the first 30 days.
3.4 10 GB Storage Block (Selected Data). There is a direct correlation between the selected data on a Client's Mac and the storage they purchase (ie. 9.2 GB selected on their hard drive to be backed up would mean that Client can purchase and stay within a 10 GB block each month). Client determines and select how much storage space is required (based on the size of the files/folders they want to back up).
3.5 Retention Policy. The BackJack software will retain 10 revisions of Client's changed files for 30 days (whichever comes first). If Client deletes a file from their hard drive (that was previously being backed up and stored on the Synectics' servers), BackJack will permanently remove the file from the servers after a period of 30 days.
3.6 Invoices. When Client initially subscribes OR buy more storage throughout the duration of their subscription, they will receive an emailed invoice to the designated billing contact on their Account. This invoice is sent from <email@example.com> confirming all details. Client needs to ensure that all spam filters are set to accept mail from this address. Once the invoice has been emailed to the billing contact on the Account, Client's credit card is automatically charged for the fees associated with their subscription or the purchase of additional storage. Charges will appear on Client's credit card statement as BackJack/Synectics Inc. Client will be responsible for keeping all contact information on their Account up to date. This can be done via email <firstname.lastname@example.org> or conveniently online via MyBackJack. Hard copies of invoices are available upon request for a fee of $5.00 per month.
3.7 Purchasing Additional Users and Storage. At any time during Client's annual billing cycle, Client is welcome to purchase additional users or storage for their Account. This can be done conveniently via MyBackJack where it will show Client the current amounts, 'in use' amounts and available amounts to assist with purchase decisions. If Client adds another User, they must either have an unassigned block of storage available OR purchase an additional block for this new User. Storage can be purchased in 10 GB block increments only. The 'Buy More' screen will confirm their current annual totals, the prorated fee for their purchase and the new annual total. Once Client has confirmed their purchases, they are immediately able to configure any new Users and assign the additional storage. All fees are automatically prorated and the fee charged will represent the cost for the remaining time left in the annual billing period. This fee will be processed immediately via either the existing credit card or via updated credit card info submitted. Credit card is the only accepted method of payment. Purchases less than $1.00 will not be processed.
3.8 Removing Users and Storage. If Client would like to deactivate a User that has performed backups, this can be done via MyBackJack. When a Client deactivates a User, they have the choice of deactivating it immediately (there is no reversing this action and the backed up files are permanently purged) OR deactivating it at some point in the future. Removing it right away immediately frees up a User to be reconfigured. If Client waits until their next invoice date, then they will not be able to use this 'freed up' User until their next invoice date. The corresponding number of storage blocks also associated with this User will be available and can be reassigned as necessary. Synectics is unable to credit Client for storage purchased and not used. As well, if Client removes/deactivates a User, Client will not be credited for this. All deactivated Users remain available for future use.
3.9 Payment Methods. Synectics accepts credit card payment via American Express, MasterCard and Visa. Clients are required to submit all relevant credit card information as requested, during the subscription or 'buy more' process, in order to process payment.
3.10 - Non-payment (credit card). The policy below applies to both initial subscription fees and future storage purchases. If Synectics is unable to process any of the above fees using the credit card information provided, Synectics proceeds as follows:
- an email notification will be sent immediately to the billing contact(s) listed on the Account
- if Synectics does not hear back or is unable to process the fees after repeated attempts within 5 business days of the original declined transaction, the Account will be placed in a suspended status and Synectics will send another email to inform Client of the suspension
- if Client does not make contact within 15 days from the suspension email being sent, Synectics sends a registered letter informing Client of the suspension. A registered letter is sent so that Synectics has formal proof that Client will have received the letter directly.
- If Client does not provide Synectics with updated payment information within 30 days of the date of the registered letter, the Account is formally deactivated and the files are permanently purged from the BackJack servers.
- The ability to conveniently update credit card information is available online via the MyBackJack portal. Contact can also be made via phone toll-free in North America at 1 888 421 0220, internationally at + 1 519 650 1559, via fax at + 1 519 650 1559 or via email email@example.com.
- Interest charges will be applied at 1.5% per month from the date of Client's initial non-payment. The client remains wholly responsible for all charges that accumulate on the Account from the time initial non-payment occurred. Once all outstanding charges have been paid in full, the Account is removed from suspended status so that both uploads and recoveries can be performed.
3.11 - Suspending an Account. Since the client is invoiced based on the amount of data being stored on the Synectics' servers, their Account cannot be placed in a temporary suspended status.
3.12 - Cancelling an Account. To cancel an Account, please review our Cancellation Policy.
Article 4 - Term and Termination
4.1 - Term. This Agreement shall become effective on the date the Client subscribes to the BackJack service by entering full contact and credit card information and agreeing to the Terms of Service and shall continue for a period of one year.
4.2 - Cancellation by Synectics. Synectics reserves the right at its sole discretion to cancel the Client's account, at any time, without notice, for any reasons Synectics considers appropriate. Synectics will provide the Client thirty (30) calendar days notice of its intention to cancel the Client's account, if Synectics determines that cancellation is necessary for reasons beyond the Client's control or that of Synectics, as long as the Client is in good standing with the terms and conditions outlined in this Agreement. Upon receipt of such notice, the Client shall arrange to recover any of its data on remote Servers by the effective date of cancellation. On the effective date of cancellation Synectics shall delete the Client's data from its Server and shall bill the Client for all charges incurred to the date of termination.
4.3 - Cancellation and 30-day money back guarantee. Synectics provide a full, 30-day money-back guarantee. If the client is dissatisfied with the service for any reason within the first 30 days (30 days from the official subscription date), the full fees initially paid will be refunded completely by way of a credit to the original credit card on file (unless otherwise specified by Client).
4.4 - Cancellation by Client and Refunds. Synectics offers clients a free account as well as a full 30-day money-back guarantee period; therefore, Synectics is unable to offer any refunds (partial or full). If Client requests to cancel their Account part way through the Annual term, the Account will remain active until the official one-year period has expired. Client's data will remain available on Synectics' servers and fully recoverable during this time. When Client's subscription is up for renewal, Synectics will confirm the continuance or discontinuance with Client. If Client wishes to remove any files being stored prior to the official deactivation of the Account, this can be done via MyBackJack online administrative portal. Client agrees upon expiration or termination of this Agreement to immediately un-install the BackJack software and destroy all copies of BackJack in its possession and/or under its control
Article 5 - Client's Rights and Obligations
5.1 - Obligations for Data. The Client hereby acknowledges and agrees that it is responsible for all data provided to Synectics for inclusion in the Services, and Synectics will not instruct, direct or advise the Client with respect to what data or information should be included, nor be responsible in any way whatsoever for the Client's selection of any such data or information. The Client is in complete control of the type and amount of data to store, as well as the deletion of any data it does not want to store on the Synectics' servers. The Client is fully responsible to ensure its files are properly stored by performing a complete recovery of the information in question prior to a deletion of the original information on its computers.
5.2 - File Restores/Recovery. The Client hereby acknowledges that all file restorations are to be completed online. This includes the recovery of data during the normal course of using the software as well as recoveries done in the event of a full disaster. Synectics does not provide any other method of restoring the data such as rebuilding/decryping/sending from their location. The security measues in place prevent this from being an option.
5.3 - Encryption Passphrase. The Client will generate an encryption key that is unique to each user by entering an Encryption Passphrase. The generated key will provide confidentiality to the Client's data and safeguard the information while in transit and while being stored on Synectics' servers. The Client agrees to document and store the Encryption Passphrase that was used to generate the encryption key, and create multiple backup copies of said Encryption Passphrase offsite and not on the Mac itself and store it in a safe location. The Client acknowledges that if it should lose or misplace the Encryption Passphrase, it will be impossible for Synectics to regenerate the encryption key and the Client will not be able to retrieve any files backed up without such key. The Client agrees that Synectics will not be responsible or be held liable for any loss of data arising from the failure by the Client to perform the above requirements. Synectics will never have knowledge of the Client's encryption key, and so will in no event be able to access to a Client's data.
5.4 - Account ID Number. Synectics shall assign to the Client an account identification number ("Account ID"), which shall be used to configure and activate the BackJack software. In order to prevent unauthorized access to the Service, the Client's Account will only be accessible through the use of the Account ID. The Client acknowledges that anyone who has unprotected access to the Client's computer will be able to use the Client's Account freely. The Client agrees to secure its computer equipment and access to its software so that only authorized users can gain access to the Client's Account and Synectics shall have no liability whatsoever with respect to any unauthorized access to the Account. The Client shall not transmit any content under a false name or ID. The Client shall not permit any other person (other than an agent acting on the Client's behalf and subject to the Client's supervision) to access the Services using the Client's Account for any purpose.
5.5 - Client Responsibilities. The Client must be at least 18 years of age and must enroll for the Service under his/her own name. The Client must promptly inform Synectics if there is any change in information provided during the subscription process, including, without limitation, change of address and any credit card numbers and expiration dates. If the Client has reason to believe that its account is no longer secure, it should promptly inform Synectics of the problem to avoid possible liability for any fraudulent charges to its account. Until Synectics is so notified, the Client will remain responsible for any unauthorized use of the Service occurring on the Client's account.
Article 6 - Limitation of Liability and Warranties
6.1 General Warranty. Synectics represents and warrants to Client that (i) title to and property in each and every licensed Software hereunder is free and unencumbered and that Synectics has the right, power and authority to license the same upon the terms and conditions of this Agreement; (ii) Synectics has obtained all rights to sublicense the Third Part Software to Client, (iii) the Software is materially free of potentially damaging programming errors with reference to data, programs and systems software; (iv) the media upon which the Software is stored is materially free from defects in materials, design and workmanship; (v) the Software and the media on which the Software is delivered to Client do not contain or include any code or program which causes or may cause, directly or indirectly, in whole or in part, any material corruption, deterioration, alteration, or other adverse change to the Software or any other software or hardware of Client, or cause damage or loss of computer files, or disrupts the use of any part of a computer system. (vi) The Software does not contain any program routine, device, or other undisclosed feature, including, without limitation, a time bomb, software lock, drop-dead device, malicious logic, worm, Trojan horse, error, defect or trap door, that is capable of deleting, disabling, deactivating, interfering with, or otherwise harming the Software, Client's databases or hardware, data, or computer programs or codes, or that is capable of providing access or produce modifications, and (vii) Synectics will comply with all applicable laws, rules and regulations while performing the Services ("General Warranty"). If such a General Warranty claim is made or appears possible, Synectics shall, at its option, secure for Client the right to continue to use the Software or modify or replace the Software so it is conforming to the General Warranty. If neither of the foregoing options are available, Synectics may require Client to return the Software for a refund equal to the Services Fees allocable paid.
6.2 Services Warranty. Synectics warrants to Client that all Services shall be performed in a professional and workmanlike manner, consistent with industry standards ("Services Warranty"). Client's remedy for a breach of the Services Warranty shall be, at Client's sole option, either (i) to have such Services re-performed by Synectics, or (ii) to receive a refund for the Services not appropriately provided during that portion of the Term.
6.3 Warranty Exclusions. Except as expressly set forth in this Agreement, Client acknowledges and agrees that the Services are provided by Synectics on an "as is, as available" basis, and that it uses the Software and Services at its own risk. Synectics makes no representation or warranty, express or implied, regarding the BackJack software or the Services, including any implied warranty of merchantability or fitness for a particular purpose, or implied warranties arising from course of dealing or course of performance.
6.4 Disclaimer. Synectics specifically disclaims all warranties of merchantability and fitness for a particular purpose
6.5 Internet Connectivity. The Client acknowledges that the Internet is not owned, controlled, or the responsibility of Synectics, and that Synectics cannot guarantee that its web site, data, files, or information will be available at all times. Except during Internet downtimes for which Synectics has no control, Synectics agrees to act responsibly and promptly to provide the Services to meet the needs of the Client.
6.6 Limitation of Liability. Under no circumstances shall either Party be liable for any indirect, incidental, special, consequential or exemplary damages (even if either Party has been advised of the possibility of such damages) that result from the use of or inability to use the Services, including but not limited to loss of revenue or lost profits, or losses that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation or transmission, business interruption or loss of business information, or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction, or unauthorized access to Synectics' records, programs, or services. Except for liability under Section 6.9 "Indemnity," or any Confidential Information under the NDA, notwithstanding the foregoing, and for greater certainty, in no event shall either Part be liable to the other for more than the aggregate amounts paid to Synectics under this Agreement in the immediately preceding 12 months. Synectics does not assume any responsibility or liability for the accuracy of any information that may be contained in any manner, be it web pages, program or data files, images or any other information stored by the Client, even if Synectics is maintaining said information.
6.7 Time Limitation. No action under this Agreement may be brought by a Party more than two years after the cause of action has accrued.
6.8 Indemnity. Synectics shall indemnify and hold Client, its officers, directors, employees, sublicensees, customers and agents, harmless from and against any and all claims, losses, liabilities, damages, expenses, costs, attorneys' fees and court costs ("Claims") alleging or arising out of Services performance under, breach of or relating to this Agreement; provided that Client gives Synectics written notice of any such Claim and Synectics has the right to participate in the defense of any such Claim at its expense. From the date of written notice from Client to Synectics of a Claim, Client shall have the right to withhold from Synectics any unpaid payments due under this Agreement. Client shall indemnify and hold Synectics, its officers, directors, employees, sublicensees, customers and agents, harmless from and against any third party claims arising out of the license grant under Section 2.1 of this Agreement.
6.9 Privacy and Security. Synectics is committed to protecting and respecting the privacy of the Client's personal information, in compliance with applicable laws. Synectics ensures industry standard security measures are followed to prevent loss, exploitation and alteration of data. Synectics shall not sell any of Client's contact information to outside parties. All financial information is encrypted during transmission and storage and is only accessible by internal employees via a secure site. Synectics represents and warrants that it shall uphold the security procedures set forth in Schedule B to this Agreement.
6.10 Dispute Resolutions. In the event that any dispute shall occur between the Parties hereto, the Parties agree to engage in good faith negotiations to resolve the dispute prior to commencing any further action or litigation under this Agreement in accordance with Section 1.4 (Governing Law; Jurisdiction).
Article 7 - General Contract Terms
7.1 Notices. All notices, requests, demands or other communications required or desired to be given under this Agreement by one part to another shall be given in writing by personal delivery, by registered mail, postage prepaid, or by facsimile (with confirmation of transmission) as follows: to Synectics, at: Synectics Business Solutions Inc., 105 Valley Crescent, R.R. #4, Markdale, Ontario, Canada, NOC 1HO- Fax: (519) 650-1559