End User License Agreement

ONLINE BACKUP SOFTWARE LICENSE AND SERVICE SUBSCRIPTION AGREEMENT

INSTALLATION OF THE SOFTWARE ACCOMPANYING THIS AGREEMENT INDICATES THE ACCEPTANCE BY YOU AND/OR YOUR COMPANY (COLLECTIVELY THE "CUSTOMER") OF THESE TERMS AND CONDITIONS. READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING OR USING THE SOFTWARE. IF THE CUSTOMER DOES NOT ACCEPT THESE TERMS, DO NOT USE THE SOFTWARE. PLEASE NOTE THAT THE CUSTOMER MAY NOT USE, COPY, MODIFY OR TRANSFER THE PROGRAM OR DOCUMENTATION OR ANY COPY, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.

THIS ONLINE BACKUP SOFTWARE LICENSE AND SERVICE SUBSCRIPTION AGREEMENT (the “Agreement”) is made by and between AfterFive by Design, Inc., a Corporation having an address at 11 Fieldstone Lane , ME 04073 with an Email address of support@simplerescue.com (the “Company”) and the “Customer”.

IN THIS AGREEMENT; The Customer wishes to acquire a license from the Company to use on-line only, certain on-line backup software programs, including updates of the programs developed by the Company (collectively, the “Programs”) in accordance with the policies set forth on “Schedule A” attached hereto and made a part hereof (collectively, the “Policies”). The Customer desires to have the right and ability to electronically transmit and store computer data using either a private data communications network, or the Internet into a location maintained by the Company and to retrieve said data should the Customer be required to do so (collectively, the “Services”). In consideration of the mutual premises set forth herein, the receipt and sufficiency of which is hereby acknowledged, the Customer and the Company agree as follows:

1. LICENSE OF PROGRAMS. Upon payment in full of all amounts set forth in the current online purchase (the “Fees”), the Company shall grant the Customer a perpetual, world-wide, non-exclusive, nontransferable license to use the object code of the Programs on-line only, subject to the terms and conditions of this Agreement. The Customer shall only be permitted to install the Programs on computers owned, leased, or controlled by the Customer and utilize the Programs for its own internal purposes. This Agreement shall not provide the Customer with any right of ownership or title in and to the Programs; rather, the Customer’s rights shall be limited to the scope of the license provided herein. The Customer shall not take any action or permit any occurrence that would create a lien or encumbrance on any of the Programs or on any copyright thereto, or create any cloud on the Company’s title thereto. The Customer shall not use any of the Programs in any manner, other than as provided in this Agreement. The Customer shall not assign, transfer, sell, resell, lease, lend, loan, sub-license, or distribute any of the Programs to any third party without the prior written consent of the Company, which may be withheld in the Company’s sole discretion. The Customer may not release the results of any performance or functional evaluation of any of the Programs to any third party without the prior written approval of the Company.

2. PRICING FOR THE SERVICES. The Customer shall pay in advance any registration fees, service fees and other fees for services incurred or to be incurred by the Customer for the Services in accordance with the rates set forth in the current online purchase (collectively, the “Service Costs”). If the Customer opts to utilize a credit card to pay for the Service Rates, the Customer shall maintain a current authorization for the Company to debit the Customer’s credit card account for the Service Costs. The Customer shall also provide the Company with a current street address and Email address and shall notify the Company of any change in either address. The Customer shall pay all applicable taxes related to the use of the Services by the Customer or the Customer’s designees. For situations where the Customer’s credit card issuing financial institution has been notified of a payment dispute, the Customer agrees that proof of usage of the Services by the Customer shall constitute the Customer’s authorization to submit a payment request to said financial institution. The Company may increase the Service Rates on an annual basis, upon the provision of prior notice to the Customer.

3. BACKUP AND TRANSFER OF THE PROGRAMS. The Customer may make up to five (5) copies of the Programs solely for backup purposes, provided that the Customer complies with the copyright requirements set forth in Section 5 of this Agreement. The Customer may not sublicense, assign, delegate, rent, lease, time-share or otherwise transfer the license set forth in this Section for any reason, and any attempt by the Customer to do so shall be void and of no force and effect.

4. INVENTIONS. The parties hereto intend that all inventions and creations (collectively, the “Inventions”) developed by either party which relate in any way to the Programs shall be the property of the Company, and shall be subject to the terms and conditions of this Agreement. For purposes of this Agreement, Inventions shall mean and include any and all ideas, concepts, discoveries, designs, improvements, and creations which relate in any way to the Programs, regardless of whether the same are patentable or protected under any Federal or State law, rule, regulation or under the common law of any State, or under International law. This Section shall indefinitely survive the termination of this Agreement.

5. RESERVATION OF PROPRIETARY RIGHTS IN THE COMPANY. The Customer acknowledges and agrees that the Fees paid by the Customer pursuant to this Agreement for the Programs was negotiated based upon the understanding of the parties that the Company retains ownership of the copyrights and all other proprietary rights in and to the Programs and Inventions created or to be created hereunder, and that the Fees would have been substantially greater had the Company not retained the copyrights in and to such items. Accordingly, the Customer represents, acknowledges and agrees that the Programs and the Inventions are valuable trade secrets and proprietary property of the Company and Manufacturer (NovaStor Corporation, 80-B Cochran Street, Simi Valley, CA 93065) and that the Customer agrees to refrain from copying, distribution, or other infringements on the exclusive rights of the Company as the copyright owner of the Programs and the Inventions, except as specifically permitted in the license granted hereunder. The Customer agrees to immediately notify the Company of any third party infringement on the Company’s rights of which the Customer may become aware. The Customer further agrees to clearly display the legend Copyright © 2005 by AfterFive by Design, Inc. on the Programs. This Section shall indefinitely survive the termination of this Agreement.

6. PROHIBITED ACTIVITIES RELATING TO THE SERVICES. The Customer is expressly prohibited from using any of the Services for the storage, possession or transmission of any information, the possession, creation or transmission of which violates any Federal, State or local law, including without limitation, stolen materials, obscene materials or child pornography. THE CUSTOMER’S BACKUP FILES MAINTAINED BY THE COMPANY ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT THE CUSTOMER’S CONSENT UPON PRESENTATION TO THE CUSTOMER OR THE COMPANY OF A SEARCH WARRANT OR A SUBPOENA.

7. ADDITIONAL PROHIBITED ACTIVITIES AND RESPONSIBILITIES RELATING TO THE PROGRAMS.

(a) The Customer shall not attempt to correct any errors in the Programs or in the Inventions or do anything to alter or modify any programming code or object code of the Programs or the Inventions. The Customer shall promptly report any errors in the operation of the Programs to the Company. The Customer shall use the Programs only for their intended purpose and only in the manner intended and described either in this Agreement and the exhibits attached hereto, or in the instruction manual of the Programs. The Customer shall use the Programs on computers which meet the “Requirements” of the instruction manual of the Programs and shall be responsible for procuring from third parties all necessary hardware for the Programs.

(b) In addition to the foregoing, the Programs, the Inventions, and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the United States has embargoed goods; or (ii) to anyone on the United States Department of Treasury’s list of Specially Designated Nationals or the United States Department of Commerce’s Table of Denial Orders; or in any other situation prohibited by United States law or regulation. In addition, due to the fact that it contains some encryption technology, it may violate the law of certain jurisdictions to either import, download or use the Programs and/or the Inventions. By downloading or using the Programs and/or the Inventions, the Customer represents and warrants that the Customer is not located in, under the control of, or a national or resident of any such country or on any such list.

8. CONFIDENTIALITY. The Customer agrees to hold all parts of the Programs and the Inventions in strict confidence for the Company. The Customer further agrees not to make any disclosure of the Programs and/or the Inventions to anyone, except to employees of the Customer to whom such disclosure is necessary to the use for which rights are granted hereunder. The Customer shall appropriately notify all employees to whom any such disclosure is made, that such disclosure is made in confidence and shall be kept in confidence by them. Under no circumstances may the Customer modify, reverse compile, or reverse assemble the programming code or the object code contained within any of the Programs. The Customer shall devote its best efforts to ensure that all persons afforded access to the Programs and the Inventions and all supporting program documentation protect the trade secrets against unauthorized use, dissemination or disclosure. This Section shall indefinitely survive the termination of this Agreement.

9. TERM/ TERMINATION.

(a) This Agreement shall commence on the date which this on-line purchase is completed, shall last for a period of one (1) year and shall automatically renew for successive one (1) year periods unless terminated in writing by a party upon the provision of written notice to the other party not less than sixty (60) days prior to the expiration of a one year term.

(b) In the event that the Customer shall breach the provisions of this Agreement including, without limitation: (i) if the Customer shall fail to pay the Fees and/or the Service Costs when due, or (ii) if the Customer shall use any of the Programs in a manner which is inconsistent with the license granted to the Customer pursuant to Section 1 of this Agreement, or (iii) if the Customer shall attempt to assign, transfer, sell, resell, lease, lend, loan, sub-license, or distribute any of the Programs and/or the license set forth in Section 3 of this Agreement to any third party without the prior written consent of the Company, or (iv) if the Customer shall fail to comply with the copyright requirements set forth in Section 5 of this Agreement, or (v) if the Customer shall use the Services in violation with the prohibitions set forth in Section 6 of this Agreement, or (vi) if the Customer shall violate any of the covenants and prohibitions set forth in Sections 7 or 8 of this Agreement, the Company may terminate this Agreement immediately upon the provision of written notice to the Customer. Moreover, if the Customer shall file a voluntary petition in bankruptcy, or shall have a petition in bankruptcy filed against it, or shall have applied for or consent to the appointment of a custodian, receiver, trustee or liquidator for all or part of its assets, or made a general assignment for the benefit of creditors, or shall cease to exist as an entity (if the Customer is an entity) or shall have deceased (if the Customer is an individual), this Agreement shall automatically terminate.

(c) Upon the termination of this Agreement, the Customer shall, at the Company’s option, either return to the Customer or destroy at the Customer’s expense, all copies of the Programs, all materials relating thereto, and the Inventions (as defined herein). If the Company notifies the Customer that the Customer is required to destroy all copies of the Programs, all materials relating thereto, and the Inventions (as defined herein), the Customer shall, within thirty (30) days of its receipt of such notification, certify in writing to the Company that all such materials have been destroyed.

(d) Upon the termination of this Agreement, the Company shall not be required to refund the Fees and/or the Service Costs paid by the Customer, and the Customer’s access to any of the Customer’s data stored by the Service may be permanently terminated by the Company.

(e) This Section 9 shall survive the termination of this Agreement.

10. INJUNCTIVE RELIEF. The Customer acknowledges and agrees that an actual or threatened violation by it of Sections 3, 4, 5, 6, 7, 8 or 9 of this Agreement will cause the Customer immediate and irreparable harm, damage and injury which cannot be fully compensated by an award of damages or other remedies at law. Accordingly, the Customer acknowledges and agrees that the Company shall be entitled, as a matter of right, to an injunction from any Court of competent jurisdiction restraining any further violation by the Customer of this Agreement, such right to an injunction shall be cumulative and in addition to, but not in limitation of any other rights the Company may have against the Customer at law or in equity including, without limitation, the right to terminate this Agreement immediately, pursuant to Section 9(b).

11. STORED DATA/ PASSWORDS/ ENCRYPTION KEYS.

(a) No bailment or similar obligation is created between the Customer (and the Customer’s designees) and the Company with respect to the Customer’s stored data.

(b) The Customer is solely responsible for maintaining the confidentiality of the Customer’s Passwords for the Services (the “Passwords”), including, without limitation, restricting the use of the Passwords by the Customer’s designated users. The Customer shall be responsible for all use of the Services accessed through the Passwords. THE COMPANY SHALL HAVE NO RESPONSIBILITY OR OBLIGATION TO THE CUSTOMER, THE CUSTOMER’S DESIGNEES OR USERS OF THE SERVICES TO MONITOR, SUPERVISE, OR OVERSEE THE CONTENTS OF THE FILES STORED ON THE SERVICES.

(c) The Company, in its sole discretion and upon explicit consent, may allow use of a version of the Programs and/or the Services which allows for the use of an alternate encryption key selected by the Company (the “Alternate Encryption Key”). If the Company provides explicit consent for use of an Alternate Encryption Key, it shall identify the Alternate Encryption Key to the Customer. WITHOUT THE ALTERNATE ENCRYPTION KEY, THE CUSTOMER’S DATA MAY REMAIN ENCRYPTED AND INACCESSIBLE. USING THE INCCORRECT OR MULTIPLE ENCRYPTION KEYS MAY RESULT IN THE CUSTOMER’S DATA REMAINING ENCRYPTED AND INACCESSIBLE.

12. BACKUP FILES FOR THE SERVICES. The Company may make copies of all files stored as part of the back up and recovery of servers utilized in connection with certain Services. The Company is not obligated to archive such copies and will utilize them only for backup purposes. The copies will not be accessible by the Customer.

13. EQUIPMENT TO ACCESS THE SERVICES. The Customer is responsible for and must provide all telephone and other equipment and services necessary to access the Services. The Customer should maintain a primary electronic file of all materials store in the Services, but should not utilize the Services as substitutes for primary electronic file maintenance. THIS SERVICE IS NOT A DATA ARCHIVAL SERVICE. THE CUSTOMER IS EXPECTED TO MAINTAIN THE ORIGINAL VERSION OF ALL FILES STORED ON THE COMPANY’S SERVERS.

14. NO WARRANTY. THE PROGRAMS, THE INVENTIONS, AND THE SERVICES ARE PROVIDED BY THE COMPANY TO THE CUSTOMER ON AN “AS IS WHERE IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, PERFORMANCE, OR NONINFRINGEMENT UPON THE PATENT, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY. THE COMPANY MAKES NO WARRANTY THAT THE PROGRAMS, THE INVENTIONS OR THE SERVICES WILL MEET CUSTOMER’S SPECIFIC OBJECTIVES OR NEEDS OR THAT THE PROGRAMS, THE INVENTIONS OR THE SERVICES WILL BE FREE FROM ERRORS OR BUGS. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THERE WILL BE UNINTERRUPTED OPERATION OF THE PROGRAMS, INVENTIONS AND/OR THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIONS AND DISCLAIMERS OF WARRANTIES ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE FEES AND THE SERVICE COSTS. Some jurisdictions do not allow the exclusion of implied warranties; accordingly, the above exclusion may not apply to the Customer in certain jurisdictions.

15. LIMITATION ON DAMAGES. IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOSSES ARISING OUT OF THE CUSTOMER’S USE OR INABILITY TO USE THE LICENSED SOFTWARE OR THE INVENTIONS. UNDER NO CIRCUMSTANCES WILL ANY DAMAGES, ASSESSED AGAINST THE COMPANY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE FEES AND SERVICE COSTS ACTUALLY PAID BY THE CUSTOMER TO THE COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM. Some states do not allow the exclusion or limitation of incidental or consequential damages; accordingly, the above exclusion may not apply to the Customer in certain jurisdictions.

16. THIRD PARTY CLAIMS/INDEMNIFICATION. THE COMPANY SHALL NOT BE LIABLE FOR CLAIMS MADE AGAINST THE CUSTOMER OR THE COMPANY ARISING OUT OF THE CUSTOMER’S USE OF THE PROGRAMS, THE INVENTIONS, AND/OR THE SERVICES, AND THE CUSTOMER HEREBY INDEMNIFIES, DEFENDS AND HOLDS THE COMPANY AND ITS MEMBERS, EMPLOYEES, AGENTS AND AFFILIATES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, OF EVERY NATURE OR TYPE, THAT MAY BE BROUGHT OR ASSERTED AGAINST THE COMPANY OR ANY OF THE COMPANY’S MEMBERS, EMPLOYEES, AGENTS OR AFFILIATES BY ANY OTHER PARTY ARISING OUT OF (I) CUSTOMER’S USE OF THE PROGRAMS, THE INVENTIONS, AND/OR THE SERVICES, (II) CUSTOMER’S BREACH OF ITS OBLIGATIONS, DUTIES AND RESPONSIBILITIES UNDER THIS AGREEMENT, OR (III) ANY BREACH OR DEFAULT BY CUSTOMER UNDER ANY REPRESENTATIONS, WARRANTIES, GUARANTEES, OR OTHER WRITTEN OR ORAL STATEMENTS MADE BY OR ON BEHALF OF CUSTOMER OR ANY PERSON UNDER THE CONTROL OF CUSTOMER, INCLUDING AGENTS OF THE CUSTOMER.

17. EXCUSABLE DELAYS. Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the Company shall not constitute a breach of this Agreement, provided that the Company has taken reasonable measures to notify the Customer of the delay and uses reasonable efforts to perform in accordance with this Agreement notwithstanding such conditions. In such case, the Company’s time for performance shall be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond the Company’s reasonable control include, but are not limited to, natural disasters, acts of government after the date of this Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics.

18. UNITED STATES GOVERNMENT END USERS The Program, Inventions and Services are “commercial items” as such term is defined at 48 C.F.R. § 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. § 12.212 (Sept. 1995). Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202-1 through 227.7202-4 (June 1995), and the corresponding regulations for Department of Defense agencies and NASA, all Customers who are United States Government End Users acquire rights in the Program, Inventions and Services with only those rights set forth therein. The Program Manufacturer is Novastor Corporation with an address at 80B West Cochran, Simi Valley, CA 93065.

19. NOTICES. Any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and deemed to be delivered if transmitted via Email at the Email addresses first above written, except for any notice of termination of this Agreement which shall be in writing and sent by United States Mail, Certified Mail, Return Receipt Requested and shall be deemed to have been delivered (i) if by United States Mail, within three (3) business days after the date of mailing, and (ii) if via electronic mail, immediately, upon receipt by the recipient.

20. INDEPENDENT CONTRACTOR STATUS. The parties agree that the Company and the Customer shall be independent contractors and not an agent, employee or representative of each other. Neither party shall have the right to bind the other party to any obligations of third parties. This Agreement shall not be deemed to constitute a franchise relationship between the parties hereto.

21. GOVERNING LAW; JURISDICTION. In interpreting the terms of this Agreement, the parties agree that the laws of the State of New Jersey shall control, without regard to the conflict of law principles thereof. In the event of a dispute arising under this Agreement, the Superior Court of the State of New Jersey, County of Essex and the Federal District Court for the District of New Jersey shall have co-exclusive jurisdiction to resolve such a dispute.

22. AGREEMENT CONTROLS. In the event of any conflicting term between this Agreement and anything contained in an exhibit hereto or in the Programs or in any of the Inventions or in any of the Services or in any other document relating to the Programs, the Inventions or the Services, this Agreement shall control.

23. NOTHING CONSTRUED. Nothing contained herein shall be construed as: (i) concerning by implication, estoppel or otherwise, any license or right to use any name, trade name, trade mark, service mark, symbol or any other identification or any abbreviation, contraction or simulation thereof, (ii) a grant to the Customer to sell, lease, sublicense or otherwise transfer or dispose of the Programs, the Inventions and/or the Services, in whole or in part.

24. ASSIGNMENT. The Customer may not assign this Agreement to another party without the Company’s prior written consent which may be granted or withheld in the Company’s sole discretion, and any attempt by the Customer to assign its rights and obligations arising under this Agreement shall be void and of no force and effect. The Company may freely assign its rights and obligations arising under this Agreement to a third party, upon prior notice to the Customer.

25. ENTIRE AGREEMENT; AMENDMENT; SEVERABILITY; NO WAIVER. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof and supercedes and replaces all prior discussions, agreements, proposals, understandings, whether orally or in writing, between the parties related to the subject matter of this Agreement. This Agreement may be changed, modified or amended only in a written agreement that is duly executed by authorized representatives of the parties. If any provisions hereof are deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability of effectiveness of the remainder of the Agreement shall not be affected and this Agreement shall be enforceable without reference to the unenforceable provision. No party’s waiver of any breach or accommodation to the other party shall be deemed to be a waiver of any subsequent breach.

26. CONSTRUCTION; INTERPRETATION; COUNTERPARTS. The Section headings in this Agreement are for convenience only and form no part of this Agreement and shall not affect its interpretation. Except as otherwise provided herein, words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context indicates is appropriate. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.



SCHEDULE A – “POLICIES”

In the Policies described below the Customer is represented by two distinct users, the Account Administrator (the “Administrator”) and the Account User (the “User”). The Customer Account includes the Administrator account, all User accounts and all associated User data.


1. Accounts which are 30 days in default of payment will be disabled.
2. Accounts which are 90 days in default of payment will be removed with any accompanying Customer data.
3. Trial Accounts that are not converted to Full Accounts by the account Administrator within 30 days will be deleted with any accompanying User data.
4. Upon upgrading an account quota, there is a 59 day delay before the account can be downgraded to a lesser quota.
5. Near Quota warnings are sent to the account administrator when the account reaches 90% usage.
6. Automated notices regarding failed backups are sent by default upon 6 days of failed backups. By default, subsequent notices are sent every 4 days.
7. The Restoration Window is the period of time which alternate versions of documents are stored. The default setting for the Restoration Window is 1 MONTHS.
8. User accounts that are deleted by an Account Administrator are deleted immediately. All User data is removed upon User deletion.
9. Account Administrators can add and remove Users. Each Accounts must maintain one active User at all times.
10. If Over Quota Protection is selected, the account will be billed in a prorated manner for any storage space used above the selected Quota. Quota usage determinations are made daily and the account is billed for each day the account is over quota.
11. Accounts which are canceled within 30 days of the initial account activation are subject to a $2.00 per gigabyte charge on data transferred by Users. This usage charge will be implemented at the full discretion of Company and is subject to the Company’s definition of Service Abuse.
12. There are no partial or full refunds for Yearly subscriptions passed the initial 30 day refund period.