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BACK-UP SERVICES SUBSCRIPTION AGREEMENT
KintolOnLine, LLC (“KintolOnLine”) d/b/a Studentbackup.com (“Student Backup”), d/b/a LongIslandBackup.com (“Long Island Backup”), d/b/a CollegeBackup.com (“College Backup”), d/b/a DefenseBackup.com (“Defense Backup”), d/b/a TravelAgentBackup.com (“Travel Agent Backup”) a New York limited liability company, P.O. Box 427, Glen Head, NY 11545 and you (“Subscriber”) agree as follows:
KintolOnLine will provide remote data back-up and retrieval services relating solely to computer work product files (the “Service”) pursuant to the terms of this Agreement. Subscriber agrees to promptly notify KintolOnLine of any change in the information provided during registration for the Service (including, without limitation, any change in mailing address, telephone number, email address or credit card information).
1.Scope of the Service for all products except Long Island Backup. KintolOnLine will provide access to software to enable Subscriber to use the Service pursuant to this Agreement. This software is not sold to Subscriber. KintolOnLine supports only the following operating systems: Windows XP, Windows Vista, Mac OS X v10.4.10, Mac OS X v10.5. The Service is provided via KintolOnLine’s various websites, or via disk and enables Subscriber to upload and store on KintolOnLine’s servers storage ONLY for the EXTENSIONS defined below of Subscriber’s personal computer work product files that are located in Subscriber’s “My Documents” folder on the Windows operating systems - Windows XP, Windows Vista (such as word processing documents, spreadsheets and PowerPoint presentations) that are stored on a single personal computer and the Users Folder in the Mac operating systems - Mac OS X v10.4.10, Mac OS X v10.5. Extensions for such files are limited to (doc, .dot, .dochtml, .dothtml, .docx, .docm, .dotx, .dotm, .rtf, .dld, .xls, .xlt, .xlm, .xld, .xla, .xlk, .xlc, .csv, .dif, .xlshtml, .xltshtml, .xlthtml, .dqy, .gra, .xlsx, .xlsm, .xltx, .xltm, .xlsb, .xlam, .ppt,.pps, .pot, .pwz, .ppa, .pptx, .potx, .potm, .ppam, .pptm, .ppsx, .ppsm, .one, .onetmp, .onetemp, .pdf, .fdf, .xfdt, .wpt, .qpw, .ws, .wri, .odt, .ott, .sxw, .stw, .ods, .ots, .sxc, .stc, .odp, .otp, .sxi, .sti, .odf, .sxm, .smf, .mml, .pages, .template, .keynote, .key, .kth, .numbers, .nmbtemplate) for StudentBackup.com and CollegeBackup.com, doc, .dot, .dochtml, .dothtml, .docx, .docm, .dotx, .dotm, .rtf, .dld, .xls, .xlt, .xlm, .xld, .xla, .xlk, .xlc, .csv, .dif, .xlshtml, .xltshtml, .xlthtml, .dqy, .gra, .xlsx, .xlsm, .xltx, .xltm, .xlsb, .xlam, .ppt,.pps, .pot, .pwz, .ppa, .pptx, .potx, .potm, .ppam, .pptm, .ppsx, .ppsm, .one, .onetmp, .onetemp, .pdf, .fdf, .xfdt, .wpt, .qpw, .ws, .wri, .odt, .ott, .sxw, .stw, .ods, .ots, .sxc, .stc, .odp, .otp, .sxi, .sti, .odf, .sxm, .smf, .mml, .pages, .template, .keynote, .key, .kth, .numbers, .nmbtemplate) for Defense Backup – Silver subscription, (doc, .dot, .dochtml, .dothtml, .docx, .docm, .dotx, .dotm, .rtf, .dld, .xls, .xlt, .xlm, .xld, .xla, .xlk, .xlc, .csv, .dif, .xlshtml, .xltshtml, .xlthtml, .dqy, .gra, .xlsx, .xlsm, .xltx, .xltm, .xlsb, .xlam, .ppt,.pps, .pot, .pwz, .ppa, .pptx, .potx, .potm, .ppam, .pptm, .ppsx, .ppsm, .one, .onetmp, .onetemp, .pdf, .fdf, .xfdt, .wpt, .qpw, .ws, .wri, .odt, .ott, .sxw, .stw, .ods, .ots, .sxc, .stc, .odp, .otp, .sxi, .sti, .odf, .sxm, .smf, .mml, .pages, .template, .keynote, .key, .kth, .numbers, .nmbtemplate, .pst, .msg, .dbx, .wab, .eml, .aly, .cly, .gly, .dbf, .adf., .alf, .pad, .adt, .tpl, .env, .lbl, .rep, .dcs, .wpa, .cac, .dat, .ddf, .lck, .loc, .mkd, .ptl, .rpt, .ptb, .mny, .lrd, .mbf, .idx, .qdf, .qel, .qph, .qtx, .nd, .qbb, .qbi, .qbw, .qbm, .qbx, .tlg, .qba, .cfp, .mdb, .ldb, .adp, .mda, .mde, .ade, .mdw, .accdb, .accde, .accdt, .accdr) for Defense Backup – Gold subscription. The Service will also enable Subscriber to download Subscriber’s files stored on KintolOnLine’s servers to any computer designated by Subscriber, with the exception of computers that already have the KintolOnLine program. KINTOLONLINE RESERVES THE RIGHT TO DELETE EXTENSIONS WITH 30 DAY NOTIFICATION TO SUBSCRIBER. SUBCRIBER HAS RIGHT TO CANCEL SUBSCRIPTION AT SUCH TIME AND RECEIVE A PRO-RATA REFUND. THE SERVICE DOES NOT INCLUDE BACKUP, STORAGE OR RETRIEVAL OF ANY PROGRAM FILES, SYSTEM FILES OR ANY PICTURE, PHOTOGRAPH, VIDEO, AUDIO OR MUSIC FILES.
1a. Scope of the Service for Long Island Backup. KintolOnLine will provide access to software to enable Subscriber to use the Service pursuant to this Agreement. This software is not sold to Subscriber. KintolOnLine supports only the following operating systems: Windows XP, Windows Vista, Mac OS X v10.4.10, Mac OS X v10.5. The Service is provided via KintolOnLine’s various websites, or via disk and enables Subscriber to upload and store selected files on KintolOnLine’s servers.THE SERVICE DOES NOT INCLUDE BACKUP, STORAGE OR RETRIEVAL OF ANY PROGRAM FILES, SYSTEM FILES OR ANY FILE THAT IS NOT SPECIFICALLY SELECTED.IT IS IMPOSSIBLE TO SELECT ALL FILES.
2. Fees and Billing for all products except Long Island Backup. For the storage space described under Scope of the Service, Subscriber agrees to pay KintolOnLine the selling price at time of purchase, payable in full upon entering into this Agreement, which entitles Subscriber to the Service for one year from the date, that KintolOnLine provides Subscriber with a password to use the Service. Subscriber’s contract for the Service will be renewed and Subscriber will automatically be charged for a renewal term in accordance with the Term/Renewal section below, unless the contract is properly terminated. There is no charge for access to the software. In the event Subscriber’s files utilize greater than the storage space defined under Scope of Service, Subscriber will be responsible for payment of additional fees charged for the use of such additional space.. For information about additional storage space fees, contact KintolOnLine. The initial fee and renewal fees will be charged to Subscriber’s credit card provided by Subscriber during registration or at the time of purchasing the disk. If the renewal charge cannot be charged against the credit card provided by Subscriber, KintolOnLine will seek another form of payment from Subscriber. Subscriber is responsible for payment of any state or local sales or use taxes or other state or local charges imposed on the sale, purchase, or use of the Service or any part thereof. KintolOnLine will not collect or accept from Subscriber any tax or payment in respect of a tax that KintolOnLine has not charged or invoiced to Subscriber.
2a. Fees and Billing for Long Island Backup. For the storage space described under Scope of the Service, Subscriber agrees to pay KintolOnLine the selling price at time of purchase, payable in full upon entering into this Agreement, which entitles Subscriber to the Service for one month from the date, that KintolOnLine provides Subscriber with a password to use the Service. Subscriber’s contract for the Service will be renewed and Subscriber will automatically be charged for a renewal term in accordance with the Term/Renewal section below, unless the contract is properly terminated. There is no charge for access to the software. In the event Subscriber’s files utilize greater than the storage space defined under Scope of Service, Subscriber will be responsible for payment of additional fees charged for the use of such additional space.. For information about additional storage space fees, contact KintolOnLine. The initial fee and renewal fees will be charged to Subscriber’s credit card provided by Subscriber during registration or at the time of purchasing the disk. If the renewal charge cannot be charged against the credit card provided by Subscriber, KintolOnLine will seek another form of payment from Subscriber. Subscriber is responsible for payment of any state or local sales or use taxes or other state or local charges imposed on the sale, purchase, or use of the Service or any part thereof. KintolOnLine will not collect or accept from Subscriber any tax or payment in respect of a tax that KintolOnLine has not charged or invoiced to Subscriber.
3. Term/Renewal for all products except . This Agreement will continue for one year following the date that KintolOnLine provides Subscriber with a password to use the Service, unless terminated earlier for breach. Subscriber may cancel this Agreement at any time prior to midnight of the fifteenth (15th) business day after the date you enter into this Agreement. AFTER THE INITIAL ONE YEAR TERM, THIS AGREEMENT WILL AUTOMATICALLY BE RENEWED AND SUBSCRIBER WILL AUTOMATICALLY BE CHARGED EACH SUBSEQUENT YEAR FOR AN ADDITIONAL RENEWAL TERM OF ONE YEAR. TO AVOID RENEWAL, PRIOR TO THE END OF THE CURRENT ONE YEAR TERM EITHER PARTY MUST NOTIFY THE OTHER THAT IT WISHES TO TERMINATE THIS AGREEMENT, IN WHICH EVENT; THIS AGREEMENT WILL TERMINATE AT THE END OF THE ONE YEAR TERM IN WHICH SUCH NOTICE IS GIVEN. THE FEE PAYABLE FOR EACH ONE YEAR RENEWAL TERM SHALL BE NO GREATER THAN THE FEE CURRENTLY CHARGED ON THE RESPECTIVE WEBSITE OF KINTOLONLINE, UNLESS KINTOLONLINE PROVIDES SUBSCRIBER NOTICE OF AN INCREASED (OR DECREASED) FEE BEFORE COMMENCEMENT OF THE RENEWAL TERM OR CHARGING SUBSCRIBER, IN WHICH CASE THE INCREASED (OR DECREASED) FEE SHALL APPLY. UNLESS THIS AGREEMENT IS TERMINATED AS SET FORTH ABOVE, KINTOLONLINE WILL CHARGE SUBSCRIBER FOR THE AMOUNT OF THE RENEWAL FEE AT THE COMMENCEMENT OF EACH RENEWAL TERM AND MAY DO SO BY AUTOMATICALLY CHARGING THE CREDIT CARD PROVIDED BY SUBSCRIBER. IN THE EVENT IT IS NOT POSSIBLE TO CHARGE THE PROVIDED CREDIT CARD, KINTOLONLINE WILL SEEK ALTERNATIVE PAYMENT FROM SUBSCRIBER. NOTWITHSTANDING THE FOREGOING, SUBSCRIBER MAY TERMINATE RENEWAL OF THIS AGREEMENT BY PROVIDING NOTICE TO KINTOLONLINE WITHIN THE FIRST SIXTY (60) DAYS OF ANY RENEWAL TERM. UPON CANCELLATION BY SUBSCRIBER, KINTOLONLINE WILL ISSUE SUBSCRIBER A PRO-RATED REFUND CALCULATED BASED ON THE ACTUAL NUMBER OF DAYS THE SERVICE WAS AVAILABLE TO SUBSCRIBER BETWEEN THE RENEWAL DATE AND THE CANCELLATION DATE (UP TO 60 DAYS) DURING THE RENEWAL TERM. AFTER 60 DAYS, SUBSCRIBER WILL BE CHARGED THE FULL ANNUAL SUBSCRIPTION FEE.
3a. Term/Renewal for Long Island Backup. This Agreement will continue for one month following the date that KintolOnLine provides Subscriber with a password to use the Service, unless terminated earlier for breach. Subscriber may cancel this Agreement at any time prior to midnight of the fifteenth (15th) business day after the date you enter into this Agreement. AFTER THE INITIAL ONE MONTH TERM, THIS AGREEMENT WILL AUTOMATICALLY BE RENEWED AND SUBSCRIBER WILL AUTOMATICALLY BE CHARGED EACH SUBSEQUENT MONTH FOR AN ADDITIONAL RENEWAL TERM OF ONE MONTH. TO AVOID RENEWAL, PRIOR TO THE END OF THE CURRENT ONE MONTH TERM EITHER PARTY MUST NOTIFY THE OTHER THAT IT WISHES TO TERMINATE THIS AGREEMENT, IN WHICH EVENT; THIS AGREEMENT WILL TERMINATE AT THE END OF THE ONE MONTH TERM IN WHICH SUCH NOTICE IS GIVEN. THE FEE PAYABLE FOR EACH ONE MONTH RENEWAL TERM SHALL BE NO GREATER THAN THE FEE CURRENTLY CHARGED ON THE RESPECTIVE WEBSTIE OF KINTOLONLINE, UNLESS KINTOLONLINE PROVIDES SUBSCRIBER NOTICE OF AN INCREASED (OR DECREASED) FEE BEFORE COMMENCEMENT OF THE RENEWAL TERM OR CHARGING SUBSCRIBER, IN WHICH CASE THE INCREASED (OR DECREASED) FEE SHALL APPLY. UNLESS THIS AGREEMENT IS TERMINATED AS SET FORTH ABOVE, KINTOLONLINE WILL CHARGE SUBSCRIBER FOR THE AMOUNT OF THE RENEWAL FEE AT THE COMMENCEMENT OF EACH RENEWAL TERM AND MAY DO SO BY AUTOMATICALLY CHARGING THE CREDIT CARD PROVIDED BY SUBSCRIBER. IN THE EVENT IT IS NOT POSSIBLE TO CHARGE THE PROVIDED CREDIT CARD, KINTOLONLINE WILL SEEK ALTERNATIVE PAYMENT FROM SUBSCRIBER. NOTWITHSTANDING THE FOREGOING, SUBSCRIBER MAY TERMINATE RENEWAL OF THIS AGREEMENT BY PROVIDING NOTICE TO KINTOLONLINE WITHIN THE FIRST FIFTEEN (15) DAYS OF ANY RENEWAL TERM. UPON CANCELLATION BY SUBSCRIBER, KINTOLONLINE WILL ISSUE SUBSCRIBER A PRO-RATED REFUND CALCULATED BASED ON THE ACTUAL NUMBER OF DAYS THE SERVICE WAS AVAILABLE TO SUBSCRIBER BETWEEN THE RENEWAL DATE AND THE CANCELLATION DATE (UP TO 15 DAYS) DURING THE RENEWAL TERM. AFTER 15 DAYS, SUBSCRIBER WILL BE CHARGED THE FULL MONTHLY SUBSCRIPTION FEE.
4. Contracting Eligibility. You must be at least 18 years old (19 years old in Alabama and Nebraska) to enter into this Agreement. If you are under the age of 18 (19 in Alabama and Nebraska) this Agreement must be entered into by your parent or guardian.
5. Access to the Service. Subscriber is responsible for the cost of, and the connectivity to, Internet access and the hardware necessary to access the Service. Files are transmitted by an Internet Service Provider (“ISP”) over communication company circuits, which are beyond KintolOnLine’s control. If the ISP or the communication circuits are not functional for any reason, Subscriber’s data files may not be accurately or completely transmitted.
6. Support. See the respective website of KintolOnLine that you signed up for the service, as listed above for support and times when it is available.
7. Limitations on Use. Subscriber agrees to use the Service only for the back-up of Subscriber’s own personal computer work product files and not for commercial use or any other purpose or on behalf of any other person. Subscriber shall not use the Service for the transmission or storage of any files that contain any virus, intentionally destructive or disruptive code, libelous, defamatory, obscene or infringing material nor shall Subscriber use the Service for any unlawful purpose nor shall Subscriber tamper with, modify or impair the backup systems used by KintolOnLine to provide the Service. KintolOnLine reserves the right to refuse, remove or disable access to any files that KintolOnLine, in its sole discretion, determines to contain any virus, intentionally destructive or disruptive code, libelous, defamatory, obscene, or infringing material or to be used for an unlawful purpose.
8. Disclaimer of Warranties. KintolOnLine represents that it will provide the Service in a commercially reasonable manner and that the Service will perform substantially in accordance with the specifications described in this Agreement. The transmission, storage, viewing and retrieval of files through the Internet are subject to a variety of conditions that make such transmission, storage, viewing and retrieval potentially unreliable. ACCORDINGLY, SUBSCRIBER AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. KINTOLONLINE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SERVICE AND ANY ENABLING SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT). KINTOLONLINE MAKES NO REPRESENTATION: (1) THAT THE SERVICE WILL MEET SUBSCRIBER’S NEEDS; (2) THAT ACCESS TO THE SERVICE OR STORED FILES WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE; (3) THAT THE STORED FILES WILL NOT BE LOST OR DAMAGED; (4) THAT SUBSCRIBER’S DATA OR FILES WILL NOT BE LOST OR DAMAGED; OR (5) THAT DEFECTS IN THE SERVICE OR ENABLING SOFTWARE WILL BE CORRECTED. SUBSCRIBER ACKNOWLEDGES THAT ANY FILES RETRIEVED THROUGH THE USE OF THE SERVICE OR ENABLING SOFTWARE IS DONE AT SUBSCRIBER’S CHOICE AND RISK AND SUBSCRIBER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO SUBSCRIBER’S PERSONAL COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH RETRIEVAL. FURTHERMORE, KINTOLONLINE DISCLAIMS ALL RESPONSIBILITY FOR SUBSCRIBER’S SECURING AND/OR LOSS OF ITS ENCRYPTION KEY. SUBSCRIBER IS AWARE THAT IT WILL NOT BE ABLE TO RETRIEVE ITS FILES WITHOUT ITS ENCRYPTION KEY, AND THAT KINTOLONLINE DOES NOT POSSESS OR RETAIN A COPY OF SUBSCRIBER’S ENCRYPTION KEY. SUBSCRIBER IS RESPONSIBLE FOR MAINTAINING ITS ENCRYPTION KEY SAFELY AND SECURELY.
9. Exclusive Remedy; Limitations of Liability. IN NO EVENT SHALL KINTOLONLINE HAVE ANY OBLIGATION OR LIABILITY FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR FILES (OR DATA THEREIN) OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE, SAVINGS OR PROFITS OR BUSINESS INTERRUPTION) OR OTHER PECUNIARY LOSS ARISING OUT THE USE OR INABILITY TO USE THE SERVICE OR ENABLING SOFTWARE OR FOR LOSS OF DATA OR FILES STORED THEREIN, EVEN IF STUDENTBACKUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE ENTIRE LIABILITY OF KINTOLONLINE, AND SUBSCRIBER’S EXCLUSIVE REMEDY, ARISING FROM OR RELATED TO THE FAILURE OF THE SERVICE TO PERFORM IN ACCORDANCE WITH SPECIFICATIONS, OR OTHERWISE ARISING FROM OR RELATED TO THIS AGREEMENT, SHALL BE LIMITED TO A REFUND OF THE AMOUNTS PAID BY SUBSCRIBER FOR THE SERVICE. KINTOLONLINE RESERVES THE RIGHT TO DELETE EXTENSIONS WITH 30 DAY NOTIFICATION TO SUBSCRIBER. SUBCRIBER HAS RIGHT TO CANCEL SUBSCRIPTION AT SUCH TIME AND RECEIVE A PRO-RATA REFUND. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW IN SUBSCRIBER’S JURISDICTION.
10. Breach and Termination. This Agreement may be terminated by either party for breach by the other party, provided written notice of such breach is given and such breach is not cured within thirty (30) days of receipt of such notice. This Agreement may also be terminated by KintolOnLine in the event KintolOnLine’s computer equipment, communication circuits, or other equipment is/are destroyed by fire, other catastrophe, or by any other means or is so substantially damaged that it is impractical to provide the Service to the Subscriber.
11. Assignment. KintolOnLine may assign or transfer its rights and obligations under the Agreement. Subscriber may not sub-license, transfer or assign its rights or interest in this Agreement.
12. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Any and all suits arising from or relating to this Agreement shall be brought exclusively, in the state or federal courts in New York County, NY and the parties consent to personal jurisdiction and venue in such courts for such purpose.
13. Entire Agreement. This document sets forth the entire agreement between the parties concerning the subject matter thereof and supersedes any other agreement, promise, representation or understanding between the parties, whether written or oral.