All users of this software and service must agree to the following terms and conditions before using this software or service. Please read them carefully and agree to accept the terms and conditions hereafter.
1. Terms and Conditions
These terms and conditions (“Terms and Conditions”) are an agreement (“Agreement”) or are included in the Agreement between Canadian Cloud Backup, Inc. (“Canadian Cloud Backup”) and you, the customer of Canadian Cloud Backup’s applications and services (“Customer”). Any Canadian Cloud Backup applications or service provided by Canadian Cloud Backup to Customer shall be governed by these Terms and Conditions. By downloading or using the applications or using the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
2. Grant of Rights to Use the Service
In consideration of the Customer’s payment of the applicable fees for the Service to Canadian Cloud Backup or one of its resellers and Customer’s compliance with the terms of this Agreement, Customer will have a limited, non-exclusive, non-shared, non-transferable, and non-assignable right during the term of this Agreement to Use the Service selected by Customer for Customer’s internal backup or disaster recovery purposes during the term of this Agreement.
Hosting the Customer Data. If Customer designates Canadian Cloud Backup as a hosting provider, Canadian Cloud Backup will host the Customer Data backed up by the Service on its servers.
3. Application Limited License
This Section applies to the Applications downloaded by Customer and its personnel on servers, desktop computers, or other local operating systems of mobile or other devices. Company grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, and non-assignable license to download, install, and Use as many copies of the Applications on such devices for Customer’s internal backup or disaster recovery purposes during the term of this Agreement.
4. Restrictions on Use of the Service and Applications
- Customer will not Use the Service or the Applications or the Service for purposes other than Customer’s internal backup or disaster recovery purposes during the term of this Agreement.
- Customer will not transfer its rights under this Agreement without Canadian Cloud Backup’s advance written consent, which Canadian Cloud Backup will not unreasonably withhold.
- Customer will not resell the Service or Use the Applications to provide services to third parties.
- Customer will not upload to the Service any data or information that:
- May not be disclosed to others pursuant to any restrictions under a confidentiality agreement or trade secret law;
- Constitutes or may constitute a breach of, or threat to, the security of the Service or Applications, including but not limited to any electronic information containing software designed to damage or disrupt a system, such as a virus, worm, or Trojan Horse;
- May not be transferred outside of Customer’s jurisdiction under applicable law, including but not limited to export restrictions, privacy laws, or laws regulating the transfer of information or data concerning or comprising munitions or weapons (including without limitation International Traffic in Arms Regulations, 22 C.F.R. § 120-130) or equivalent foreign laws).
- Constitutes information or data that may not lawfully be communicated, stored, or possessed under applicable law, including but not limited to child pornography.
- Customer will not interfere with the proper functioning of the Service.
- Customer will not attempt to obtain unauthorized access to the accounts of other customers or otherwise avoid any restrictions on the Service.
5. Monitoring of the Service and Investigations
Customer acknowledges that Canadian Cloud Backup is entitled to:
- Immediately suspend Customer’s access to the Service if Canadian Cloud Backup has reason to believe Customer has violated one of the restrictions in Section 4.
- Monitor Customer’s use of the Service,
- Investigate possible violations of this Agreement or violations of applicable law, and
- Remove any data or information from the Service that violates this Agreement or applicable law.
6. Further Restrictions
Customer may not, under any circumstances whatsoever, make any copies (or attempt any duplication), whether directly or indirectly, of the Applications for any reason other than Customer’s internal backup or disaster recovery purposes during the term of this Agreement. In addition, Customer shall not directly or indirectly, do any of the following: (a) remove any copyright, trademark, or other proprietary notices affixed to the Applications; (b) alter, change, repurpose, or modify the Applications or Service; (c) reverse engineer, disassemble, decompile, or attempt to derive source code from the Applications; (d) prepare derivative works, improvements or intellectual property based on the Applications or Service; (e) use the Applications or Applications for any unlawful purpose or activity; or (f) cause or intend the Applications or Applications to be used in any way or manner that may violate the intellectual property or other personal rights (including, but not limited to, privacy rights and ownership rights) of any other person or entity.
- Canadian Cloud Backup will provide commercially reasonable support for the Service and Applications during the term of this Agreement by answering questions by email or phone, and incorporating periodic upgrades, error corrections, modifications, or enhancements to the Applications that are made generally available. Canadian Cloud Backup is entitled to make any fixes, updates or upgrades available by automatic download, and Customer hereby agrees to accept fixes, updates, or upgrades upon Customer’s automatic download of the same.
- It is Canadian Cloud Backup’s goal to have its Service available to Customer twenty-four hours a day seven days a week, with the exception of planned downtime. Canadian Cloud Backup will use commercially reasonable efforts to provide Customer with average annual availability that is equal to or greater than 99.99%. Canadian Cloud Backup’s records and data shall be the basis for all service availability calculations and determinations.
In consideration of the rights in these Terms and Conditions to Use the Service and Applications, and as a condition of maintaining Customer’s access to the Service, Customer will pay Canadian Cloud Backup the subscription and usage fees set forth on an invoice provided to Customer by Canadian Cloud Backup or the applicable reseller for the then-current period of Service.
Canadian Cloud Backup’s privacy practices regarding Customer Data is governed by Canadian Cloud Backup’s Privacy Statement, which is incorporated by reference as if fully set forth herein. Canadian Cloud Backup does not access or view the content of any Customer Data that Customer has uploaded to the Service except when Customer requests such access for support purposes, investigating security incidents or breaches of this Agreement, or in response to subpoenas, search warrants, governmental investigations, or other administrative or judicial legal process.
- “Confidential Information” means Customer Data exclusive of information that has: (a) become generally known or available to the public other than by disclosure by Canadian Cloud Backup; (b) is in Canadian Cloud Backup’s possession without restrictions of confidentiality prior to receipt from Customer or to Canadian Cloud Backup’s access in connection with operation of the Service, (c) became known to Canadian Cloud Backup from a source other than Customer other than by the breach of an obligation of confidentiality owed to Customer, or (d) been provided to Canadian Cloud Backup by Customer a written statement that it is provided without restriction on disclosures.
- Canadian Cloud Backup will hold all Confidential Information in confidence, Canadian Cloud Backup may use the Confidential Information only to provide the Service or otherwise perform this Agreement, and Canadian Cloud Backup will not disclose, directly or indirectly, any Confidential Information to a third party. Canadian Cloud Backup will: (i) use all reasonable precautions, consistent with Canadian Cloud Backup’s treatment of its own confidential information of a similar nature, but not less than a reasonable standard of care, to prevent the unauthorized access, use, and/or disclosure of the Confidential Information; (ii) notify Customer upon discovery of any unauthorized access to, use or disclosure of Confidential Information, or any other breach of or noncompliance with this Agreement; and (iii) subject to limits on access under Section 9, permit access to Confidential Information within Canadian Cloud Backup only to those officers, directors, employees, and contractors with a need to know it.
- Nothing in this Section shall be deemed to preclude Canadian Cloud Backup from preserving any information or data to the extent required by applicable evidence preservation law.
11. Requests for Customer Data
In the event that Canadian Cloud Backup is served with or otherwise subject to third party legal process (including a subpoena) requiring it to testify about, to produce, or otherwise to divulge Customer Data, to the extent permitted by applicable law, Canadian Cloud Backup will immediately inform Customer and provide Customer with a copy of such subpoena or process. Canadian Cloud Backup will make every other reasonable effort to prevent or limit disclosure of the Customer Data. To the extent reasonably possible, Canadian Cloud Backup will provide Customer with the opportunity to intervene and assert objections to production of the materials. If Canadian Cloud Backup complies with this Section, it shall be entitled to disclose Customer Data in response to administrative or judicial process.
12. Intellectual Property Ownership
- Intellectual Property Rights. “Intellectual Property Rights” means all forms of intellectual property rights and protections, now known or hereafter established, that may be obtained for, or may protect, Company assets, which includes, but is not limited to, all right, title, and interest in Canadian and foreign patents and patent applications; trade secret and nondisclosure rights; copyrights; moral rights; and trademarks, service marks, trade names, product names, and brand names.
- Intellectual Property Rights of Canadian Cloud Backup. Customer acknowledges that (i) the Service and Applications are protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties, (ii) Customer has a subscription to Use the Applications, but the Applications are not sold to Customer, (iii) the Applications and Service belong solely and exclusively to Canadian Cloud Backup and its licencors, which own all right, title, and interest in and to the Applications and any Intellectual Property Rights associated therewith. This Agreement provides Customer no rights in connection with any of Canadian Cloud Backup’s trademarks or service marks.
- Right to Process Customer Data. Customer hereby grants Canadian Cloud Backup the right to process Customer Data for purposes of providing the Service or otherwise performing this Agreement.
13. Ownership of Customer Data
Subject to Section 12(c) and applicable law, as between Canadian Cloud Backup and Customer, Customer owns all right, title, and interest in and to Customer Data. Canadian Cloud Backup will, upon expiration or termination of this Agreement for any reason and Customer’s request, delete Customer Data from its Services and destroy any other Confidential Information within a reasonable time, except where preservation of Customer Data or other Confidential Information is required by applicable law. Prior to such expiration or termination, Customer will have access to its Customer Data and can make copies of Customer Data for its own backup or archival purposes using the Service. If Customer desires any other support regarding transition of Customer’s Customer Data, Customer will pay for such support to be charged as Professional Services on a statement of work mutually agreed to by the parties.
14. Warranties, Disclaimer of Warranties and Limitations of Liability
- Canadian Cloud Backup’s Warranties.
- Canadian Cloud Backup warrants during the term of this Agreement (“Warranty Period”) that the Applications and Service will operate substantially in accordance with its published documentation concerning the Applications or Service. If, during the Warranty Period, the Applications or Service fails to operate substantially in accordance with its published documentation concerning the Applications or Service, Canadian Cloud Backup shall use commercially reasonable efforts to repair, correct, or replace the Applications or Service so that they perform substantially in accordance with its published documentation or, if Canadian Cloud Backup is unable to do the foregoing, Canadian Cloud Backup shall refund the applicable Subscription Fee. The foregoing warranty will be Customer’ exclusive remedy and Canadian Cloud Backup’s entire liability for any breach of the warranty set forth in this subsection.
- Canadian Cloud Backup warrants during Warranty Period that it uses industry-standard commercially reasonable administrative, technical, and physical safeguards to:
- Protect the confidentiality, integrity, and availability of the Customer Data from security threats it can reasonably anticipate and
- Protect Customer Data from loss, misuse, and unauthorized access, use, disclosure, alteration, or destruction.
- Disclaimer of Warranty. EXCEPT AS WARRANTED IN SECTION 14(a), THE APPLICATIONS, THE SERVICE, AND ASSOCIATED DOCUMENTATION ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CANADIAN CLOUD BACKUP AND ITS LICENCORS HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
- Limitation of Liability. CANADIAN CLOUD BACKUP WILL NOT BE LIABLE TO CUSTOMER FOR LOST PROFITS, LOST DATA, OR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF CANADIAN CLOUD BACKUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CANADIAN CLOUD BACKUP’S LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, THE SOFTWARE, OR THE SERVICE, WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO CANADIAN CLOUD BACKUP. Company and Canadian Cloud Backup expressly acknowledge and agree that the limitations of liability set forth in this Section are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.
15. Specific Disclaimers
Customer understands and acknowledges that:
- CANADIAN CLOUD BACKUP DOES NOT WARRANT THAT: (1) THE SERVICE AND APPLICATION ARE AVAILABLE 100% OF THE TIME OR PREVENT ALL ALTERATION OF DATA; (2) THE FUNCTIONS CONTAINED IN OR ACCESSIBLE THROUGH THE SERVICE OR APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE APPLICATIONS AND SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SERVICE AND APPLICATIONS IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION.
- CANADIAN CLOUD BACKUP HAS NO DATA SECURITY OBLIGATIONS OTHER THAN THOSE SET FORTH IN SECTION 9(b)(i).
- CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THAT THE SERVICE AND APPLICATIONS MEET ITS REQUIREMENTS, AND HAVE THE FEATURES THAT IT NEEDS, AND CANADIAN CLOUD BACKUP DISCLAIMS ANY SUCH RESPONSIBILITY.
- WITHOUT LIMITING THE GENERALITY OF SUBSECTION (a), CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THAT THE SERVICE AND APPLICATIONS MEETS PRIVACY AND DATA SECURITY REQUIREMENTS THAT APPLY TO CUSTOMER. CANADIAN CLOUD BACKUP DOES NOT GUARANTY THAT CUSTOMER’S USE OF THE SERVICE OR APPLICATIONS COMPLIES WITH ANY OR ALL PRIVACY OR DATA SECURITY REQUIREMENTS.
- THE BACKUP SOLUTIONS HELP TO DE-DUPLICATE DATA UPLOADED TO THE SERVICE. HOWEVER, NO SYSTEM OF DE-DUPLICATION DATA IS 100% ACCURATE AND NO SYSTEM CAN ELIMINATE ALL DUPLICATES. MOREOVER, THESE SOLUTIONS DO NOT ATTEMPT TO STOP THE UPLOADING OF NEAR DUPLICATES TO THE SERVICE.
- CUSTOMER ACKNOWLEDGES THAT CANADIAN CLOUD BACKUP WILL NEED TO TAKE THE SERVICE OFFLINE FROM TIME TO TIME FOR REASONABLE PERIODS OF TIME TO UPGRADE AND MAINTAIN THE SERVICE, SUBJECT TO SECTION 7(b).
16. Customer Warranties
Its use of the Service and Applications will in all manners and respects comply with any and all applicable laws, rules, and regulations, and Customer has obtained the necessary consent from the relevant data subjects to collect and use any personal information contained in the Customer Data uploaded to the Service and that the processing operations of the Service fall within the scope of the purposes for which such consents were obtained.
Customer will indemnify, hold harmless, and defend Canadian Cloud Backup, any parent, subsidiary, or affiliate of Canadian Cloud Backup, and any of their respective officers, directors, members, employees, and agents (each of whom is referred to as an “Indemnified Party”) against all claims, demands, suits, losses, damages, liability costs, actions, judgments, and expenses (including reasonable attorney’s fees) arising from or in connection with:
- Customer’s breach of any warranty or provision in this Agreement;
- Any violation of law by Customer, or any of its officers, directors, members, partners, employees, contractors, or agents;
- Any information or data uploaded to the Service; Any and all third party claims based on allegations that Customer misappropriated the trade secrets of, violated the Intellectual Property Rights of, breached an obligation of confidentiality to, or violated the privacy rights of any third party; or
- Any and all third party claims relating to Customer’s use, or acts or omissions during the use, of the Service.
Canadian Cloud Backup shall be entitled to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will fully cooperate with Canadian Cloud Backup in asserting any available defenses, and promptly reimburse Canadian Cloud Backup’s reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from its defense in such matter. No settlement, compromise or adjudication of any claim to which indemnity applies hereunder, shall be effective or permitted without the express and prior written consent of Canadian Cloud Backup.
18. Intellectual Property Indemnity
- Canadian Cloud Backup will indemnify, hold harmless, and defend Customer and any of its officers, directors, members, employees, and agents (each of whom is referred to as a “Customer Indemnified Party”) against all claims, demands, suits, losses, damages, liability costs, actions, judgments, and expenses (including reasonable attorney’s fees) arising from or in connection with a third party allegation that the use of the Service and Applications infringes any Canadian patent, copyright, or other Intellectual Property Rights of any third party, provided that Customer promptly notifies Canadian Cloud Backup of such allegations, or any claim, suit, or action based on such allegations; permits Canadian Cloud Backup exclusively to defend, compromise, or settle any such claim, suit, or action; and provides all necessary information and assistance regarding such allegations. Canadian Cloud Backup will not be liable for any costs, damages, or fees paid by Customer on such claim, suit, or action unless authorized in writing by Customer.
- Should the Service or Applications, or in Canadian Cloud Backup’s opinion be likely to become, the subject of allegations of infringement for which Customer could seek indemnification under subsection (a), in addition to the rights provided under subsection (a), Canadian Cloud Backup may, at its option, (i) procure for Customer the right to continue to use the allegedly infringing item, (ii) replace or modify the allegedly infringing item to make the same non-infringing, or (iii) if neither (i) nor (ii) is possible, terminate the Agreement and refund the fees paid by Customer under this Agreement.
- Canadian Cloud Backup will have no liability for any claim to the extent it is based upon (i) the combination, operation, or use of the Service or Application with equipment, devices, or software not supplied or specified by Canadian Cloud Backup if no infringement would have occurred absent such combination, operation, or use (ii) the alteration or modification of the Service, or Application not made by Canadian Cloud Backup if no infringement would have occurred absent such alteration or modification, or (iii) the failure by Customer to use the most current version of an Application.
- This Section 18 states the entire liability of Canadian Cloud Backup with respect to any Intellectual Property Rights by the Service or Application and Canadian Cloud Backup will have no additional liability with respect to any alleged or proven infringement.
- When this Agreement Terminates. This Agreement will become effective on the Effective Date and continue in force until the end of the initial term selected by Customer for the Service on the invoice provided to Customer by Canadian Cloud Backup or the applicable reseller.
- Renewal. This Agreement will automatically renew for additional terms set forth on a new invoice provided to Customer by Canadian Cloud Backup or the applicable reseller (each a “Renewal Term”) unless either party provides notice of nonrenewal least thirty (30) days prior to the commencement of the next Renewal Term.
- Effect of Termination. Upon expiration or termination of this Agreement, Customer will no longer be entitled to, and shall not, access or Use the Applications or Service. The provisions of Sections 4, 5, 6, 9, 11, 12, 13, 14(b), 14(c), 15, 16, 17, 18, 19(d), 21, and 23 will survive the expiration or termination of this Agreement. Expiration or termination of this Agreement for any reason will not affect any payment obligation incurred before such expiration or termination. Furthermore, upon termination, Customer shall immediately discontinue any and all use of the Applications and destroy, delete, or uninstall any and all copies of the Applications in your possession, whether on a server, computer, mobile device, other computing device, or on any media or otherwise.
20. Force Majeure
In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than a payment obligation) due to any act of God, fire, casualty, flood, tsunami, earthquake, war, terrorism, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, unavailability of Internet or other telecommunications services, or any other cause beyond the reasonable control of the party invoking this section, and if such party shall have used its best efforts to mitigate its effects, such party shall give prompt written notice to the other party, its performance shall be excused during, and the time for the performance shall be extended for, the period of delay or inability to perform due to such occurrences.
Any notice or other communication to be given to Canadian Cloud Backup hereunder shall be in writing, addressed as set forth below, and given by postal mail (postage prepaid and sent registered or certified mail return receipt requested) or national or international overnight courier service (e.g. Federal Express, DHL, UPS) that confirms delivery in writing. The date of receipt shall be deemed the date on which such notice is given. Notices to Customer hereunder may be provided by electronic mail to the electronic mail address provided by Customer to Canadian Cloud Backup (and such notice shall be deemed given immediately upon transmission thereof by Canadian Cloud Backup). Notice hereunder shall be directed to a party at the address for such party set forth in the preamble of this Agreement. Either party may change its address for notice purposes hereof on written notice to the other party in accordance with this section.
Canadian Cloud Backup
2 Gore St
Kingston, Ontario, Canada
Canadian Cloud Backup may, in its sole and absolute discretion, change any term of this Agreement on a prospective basis, and modify, add, or discontinue any aspect, content or feature of the Applications or Service, at its sole discretion by posting a new version at the following URL: http://canadiancloudbackup.com/terms-of-service/. Customer’s continued use of the Service or Applications after any such modifications or changes are posted will constitute Customer’s complete and unequivocal acceptance of any such modifications or changes to the Agreement. Customer agrees to periodically review this Agreement to ensure that it is in compliance with any changes or modifications that are made to the Agreement.
This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement. No waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by an authorized representative of each party. The failure of a party at any time to require performance of any obligation of the other party shall not affect its right to enforce any provision of this Agreement at a later time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach. Canadian Cloud Backup may freely assign or transfer (in whole or in part) this Agreement with or without notice thereof to Customer. Canadian Cloud Backup is entitled to subcontract portions of the Service to third parties, provided that Canadian Cloud Backup will remain fully responsible for its obligations to deliver the Service under this Agreement. Customer may not assign this Agreement or delegate its duties hereunder without Canadian Cloud Backup’s prior written consent, which Canadian Cloud Backup will not unreasonably withhold. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the parties and their permitted successors or assigns. The unenforceability of any provision or provisions of this Agreement shall not render unenforceable or impair its remainder. If any provision of this Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the offending provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties. The headings in this Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.
All users by accepting this license and the terms and conditions for use acknowledge and accept and adhere to the laws of the province of Ontario and the courts of Ontario Canada.
- Canadian Cloud Backup shall not provide a refund for any unused portion of Service paid in advance by User. Upon cancellation, the next months billing will be suspended and all accounts closed.
- Pricing is subject to change without prior notice. All prices listed in Canadian dollars.
Updated on March 30, 2017