eCopySafe - Online Computer Data Backup


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Terms of Service

Effective June 2005

Daly Computer Services CopySafe service (the "Service") will be provided to you ("you," "your," or "Customer") on the terms and conditions set forth in this Subscriber Agreement (the "Agreement") by the operating company Daly Computer Services that owns and/or operates the websites eCopySafe.com and eCopySafe.com ("Daly Computer Services," "The company," "we," "us," or "our"). For purposes of this Agreement, "affiliate" means any entity that controls, is controlled by or is under common control with Daly Computer Services.

1. Services Provided
a. Daly Computer Services provides you with a predetermined amount of remote storage space to be used for keeping copies of your selected files. You may store and retrieve these files at your discretion. Services are made available to the user on the understanding that the user(s) are completely and solely responsible for its use or non-use and any precipitating circumstances, good or bad.

2. Fees and Charges
a. You agree to pay all charges and fees associated with the use of the Service, which charges may include, without limitation, monthly service fees, as well as fees for additional users and added storage as you request them. A current applicable listing of fees and charges for the Service is posted on the web site at www.eCopySafe.com or on another web site about which you have been notified. Daly Computer Services shall have the right to change the amount of fees and charges from time to time as set forth in Section 6(b). Monthly service fees shall be payable monthly in advance. A one-time set-up fee will be included with your initial payment.

b. Credit Card: Once authorized by you, Daly Computer Services shall charge all amounts payable by you to Daly Computer Services pursuant to this Agreement to your credit card in accordance with the credit card information provided by you. By providing a credit card number to us, you authorize us to continue charging the credit card for all monthly fees (including without limitation monthly service fees, as well as applicable taxes and fees) payable to Daly Computer Services, and any other charges incurred by you and payable to Daly Computer Services pursuant to this Agreement, until this Agreement is terminated. Monthly service fees may be charged up to thirty (30) days in advance of the first day of the month for which the charges relate. You agree to inform us immediately of any change in credit card information (including without limitation a change in expiration date). Your card issuer agreement governs use of the credit card in connection with the Service, and you must refer to that agreement with respect to your rights and liabilities as a cardholder. If Daly Computer Services does not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand by us.

c. Late Payments; Failure to Pay: You agree to pay Daly Computer Services, as set forth in this Agreement, for any fees or charges due to Daly Computer Services, including any administrative late fee(s) and related fees, charges and assessments due to late payments or non-payments. If Daly Computer Services does not receive any required payment from you by the date on which the payment is due, you may be charged such fees, charges and assessments and the Service may be disconnected. If the Service is disconnected, in addition to the rights and remedies of Daly Computer Services under this Agreement or otherwise, you may be required to pay a reconnect fee in addition to all past due charges before the Service is reconnected. Any administrative late fee(s) and related fees, charges and assessments due to late payment and nonpayment are not penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments or non-payments by our customers. These costs will not be readily ascertainable, and will be difficult to predict or calculate, at the time that such administrative late fee(s) and related charges are set because it would be difficult to know in advance: (a) whether you will pay for the Service on a timely basis, (b) if you do pay late, when you will actually pay, if ever, and (c) what costs we will incur because of your late payment or non-payment. Daly Computer Services will inform you of the amount of these fees and other separate or additional charges by posting notice of such charges on the Services web site at www.eCopySafe.com or on another web site about which you have been notified, or by sending notice as set forth in Section 6(b) below, prior to Daly Computer Services assessing any new or changed fees. You may avoid these fees and other separate or additional charges relating to late payment and non-payment by complying with the payment provisions of this Agreement and by complying with Daly Computer Services current billing policies. If you fail to pay for the Service when due (because of a failure to comply with the payment provisions of this Agreement or for any other reason), you agree to voluntarily pay all administrative late fee(s) and related fees, charges and assessments due to late payment and non-payment. Daly Computer Services does not anticipate that you will fail to pay for the Service on a timely basis. We do not extend credit to customers and the administrative fee(s), related fees, charges and assessments are not interest, a credit service charge or a finance charge. Daly Computer Services late fee practices may be revised to comply with applicable state or local laws, rules or regulations. If we are required to use a collection agency or attorney to collect money owed by you or to assert any other right that we may have against you, you agree to pay the reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorneys fees and arbitration or court costs.

3. Termination and Expiration

a. Term: The term of this Agreement shall commence upon the set-up of your Service, and shall continue on a month to month basis thereafter until terminated as provided for in this Agreement or until superseded by a revised Subscriber Agreement.

b. Termination by Customer: You may terminate this Agreement for any reason at any time by providing Daly Computer Services with written notice of termination, in accordance with the terms of this Agreement. In the event of your termination, any applicable fees and charges will accrue through the date of termination but all prepaid monthly service fees for Service not received will be refunded (less any outstanding amounts due Daly Computer Services for other applicable fees and charges).

c. Termination by Daly Computer Services: We may terminate this Agreement (i) at any time without prior notice if you fail to comply in full with any term of this Agreement, or (ii) for any other reason upon thirty (30) days notice to you. In the event Daly Computer Services terminates the Service for any reason other than your violation of this Agreement, any fees and charges will accrue through the date of termination but any prepaid monthly service fees for Service not received will be refunded (less any outstanding amounts due Daly Computer Services for other applicable fees and charges).

d. Customer Obligations Upon Termination: You agree that upon termination of this Agreement:

i You will immediately cease use of the Service and uninstall and destroy all copies of any software provided to you pursuant to this Agreement or otherwise used by you to access the Service.

ii You will pay in full for your use of the Service up to the later of the effective date of termination of this Agreement or the date on which the Service is disconnected. You agree to pay on a pro-rated basis for any use by you of the Daly Computer Services for a part of a month.

e. Retention of Rights: Nothing contained in this Agreement shall be construed to limit Daly Computer Services rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, Daly Computer Services and its suppliers reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on Daly Computer Services or its suppliers servers or systems. In addition, you may forfeit your account user name. We shall have no liability whatsoever as the result of the loss of any such data, names or addresses.

f. Survival: All representations, warranties, indemnifications and limitations of liability contained in this Agreement shall survive the termination of this Agreement, as well as any other obligations of the parties hereunder which, by their terms, would be expected to survive such termination or which relate to the period prior to termination.

4. Limitation of Liability; No Warranties; Warnings

a. All Software provided by Daly Computer Services, eCopySafe, or eCopySafe (together known as "the company") is on an "as is" basis with no warranties of any kind and the company or its shareholders will not be liable for any damages of any kind arising from its use. The company further disclaims all warranties, express and implied, including without limitation, any implied warranties of merchantability or fitness for a particular purpose.

b. The company shall not be liable for any indirect, special, incidental or consequential damages (including damages for loss of business, loss of profits, loss of backup data, or the like), whether based on breach of contract, tort (including negligence), product liability or otherwise, even if the company or its representatives have been advised of the possibility of such damages and even if a remedy set forth herein is found to have failed of its essential purpose.

c. In consideration of the use of this software to provide services to any parties, the user hereby undertakes to indemnify and hold the company harmless from and against all claims, suits, losses, liabilities (including the Companys reasonable attorneys fees), damages, cost and expenses from or in connection to this Software and/or these services for whatever reason.

d. The software and services provided by the company is made available for the sole use of the user hereby undersigned or his agent as identified under Accepted and Confirmed.

e. The company provides you with a method for storing your information. It does not warrant the condition of your files. Any files that are corrupted, damaged, or infected with a virus, worms, or other malicious code or malware and saved to the site by the user intentionally or unintentionally will continue to be so. It is the users responsibility to assure the integrity of all data being stored.

f. The company does not warrant or guarantee the complete backup of your computer, software, or files. It provides a storage service for user selected files. It is recommended that users perform a complete backup of their systems on CD or other archiving method periodically to preserve systems preferences, applications, etc. as additional methods data and system security.

g. In the case of natural disasters, acts of war, or acts of God, the servers storing this information may become unavailable. The company will not be liable for any loss or inconvenience in the case of such occurrences. The company will, however, take all reasonable steps to restore this information as quickly as possible.
h. You will have a unique login name and password. You are responsible for maintaining the confidentiality of your password and account information and are fully responsible for all conduct carried out under this password and account. We are not liable for any loss of confidentiality or for any damages arising from your failure to comply with these terms. You will promptly report any unauthorized use of your password to us.

5. Binding Arbitration

a. Purpose: If you have a Dispute (as defined below) with Daly Computer Services that cannot be resolved through the informal dispute resolution process described in your Welcome Kit from Daly Computer Services, you or Daly Computer Services may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.

b. Definitions: As used in this Arbitration Provision, the term "Dispute" means any dispute, claim or controversy between you and Daly Computer Services that has accrued by the effective date of this Agreement, which is the date that the Service was first available for your use ("Effective Date") or any dispute, claim or controversy that accrues after the Effective Date, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the class action waiver clause provided in Section 5(e)(2) below). "Dispute" is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, "Daly Computer Services" means Daly Computer Services, its officers, directors, employees and agents, and all entities using the brand names "Daly Computer Services" "eCopySafe.com" or eCopySafe.com." As used in this provision, the term "Arbitration Provision" means all the terms of this Section 5.

c. Initiation of Arbitration Proceeding/Selection of Arbitrator: If you or Daly Computer Services elect to resolve your Dispute with Daly Computer Services through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may select from the following arbitration organizations, which will apply the appropriate rules for consumer claims to arbitrate the Dispute:

1. American Arbitration Association ("AAA")
335 Madison Ave., Floor 10
New York NY 10017-4605
1-800-778-7879
www.adr.org

2. Judicial Arbitration & Mediation Service ("JAMS")
1920 Main Street, Suite 300
Irvine, CA 92614
(949) 224-1810
www.jamsadr.com

3. National Arbitration Forum ("NAF")
P.O. Box 50191
Minneapolis, MN 55405-0191
1-800-474-2371
www.arbitration-forum.com

d. Arbitration Procedures: Arbitration Procedures: Because the service provided to you by Daly Computer Services concerns interstate commerce, the Federal Arbitration Act ("FAA"), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from Daly Computer Services may apply to and govern the substance of any Disputes.

Any state statutes pertaining to arbitration, however, shall not be applicable under this Arbitration Provision. If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, the rules contained in this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the rest of the Subscriber Agreement, this Arbitration Provision shall govern.

You and Daly Computer Services agree that a single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will apply applicable statutes of limitation (as modified by this Arbitration Provision), will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information, including the use of protective orders to prohibit disclosure outside of the arbitration, if requested to do so by you or Daly Computer Services.

The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Upon a request by you or Daly Computer Services, the arbitrator will provide a brief statement of the reasons for the award. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties.

If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The party wishing to appeal the decision of the single arbitrator shall have thirty (30) days from the date of entry of the written arbitration award to notify the arbitration organization, through a written notice of appeal, that it is exercising its right to appeal. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing partys notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.

e. Restrictions:
(1) YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE (EXCEPT FOR BILLING DISPUTES WHICH ARE SUBJECT TO SECTION 3 OF THE AGREEMENT), OR YOU WAIVE THE RIGHT TO PURSUE A CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.

(2) ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS-ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED.

f. Location of Arbitration: The arbitration will take place in Sacramento County, California.

g. Payment of Arbitration Fees and Costs: YOU ARE RESPONSIBLE FOR ALL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN DALY COMPUTER SERVICES FAVOR, YOU SHALL REIMBURSE DALY COMPUTER SERVICES FOR THE FEES AND COSTS INCURRED IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE DALY COMPUTER SERVICES FOR ANY OF THE FEES AND COSTS INCURRED BY DALY COMPUTER SERVICES . IN THE EVENT A PARTY ELECTS TO APPEAL AN AWARD TO A THREE ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, DALY COMPUTER SERVICES WILL PAY ALL FEES AND COSTS WHICH IT IS REQUIRED BY LAW TO PAY.

h. Severability: If any clause within this Arbitration Provision (other than the class action waiver clause identified in Section 5(e)(2) above) is found to be illegal or unenforceable, that clause will be severed from the Arbitration Provision, and the remainder of the Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable. In the event that this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and Daly Computer Services have each agreed to waive, to the fullest extent allowed by law, any trial by jury.

i Exclusions from Arbitration: YOU AND DALY COMPUTER SERVICES AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION:

(1) ANY CLAIM FILED BY YOU OR BY DALY COMPUTER SERVICES THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT WHICH IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTYS INTELLECTUAL PROPERTY RIGHTS; (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE, THEFT OR PIRACY OF SERVICE; (4) ANY DISPUTE THAT ARISES BETWEEN DALY COMPUTER SERVICES AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. 522(9); AND (5) ANY DISPUTE THAT YOU ARE PERMITTED TO PURSUE BEFORE THE LOCAL FRANCHISE AUTHORITY UNDER THE TERMS OF THE FRANCHISE.

j Continuation: This Arbitration Provision shall survive the termination of your service with Daly Computer Services.

6. Miscellaneous

a. Contacting Us: For any inquiries or notices required in connection with this Agreement, you may contact us via e-mail at info@ecopysafe.com (or such other e-mail address as Daly Computer Services may designate). You may contact us by regular mail by sending your items to the mailing address listed at Daly Computer Services.

b. Notice: Daly Computer Services may deliver any required or desired notice to you by posting it on the Services web site at Daly Computer Services or on another web site about which you have been notified, or by sending notice via e-mail, first class U.S. postal mail, or overnight mail to your physical address of record or the e-mail address on Daly Computer Services account records. You agree that any one of the foregoing will constitute sufficient notice. Because we may from time to time notify you about important information regarding the Service and the Agreement by these methods, you agree to regularly check your postal mail, e-mail and all postings on the Services web site at Daly Computer Services or on another web site about which you have been notified and bear the risk of failing to do so.

c. Changes to the Service and the Agreement: Daly Computer Services may, in it sole discretion, change, add to or remove portions of the Service (including without limitation content, functionality, hours of availability, and equipment requirements) at any time without notice. In addition, we may amend or modify this Agreement at any time in our sole discretion upon thirty (30) days prior notice to you. We will notify you of any such amendments or modifications as set forth in Section 6(b) above. You agree that any one of the foregoing will constitute sufficient notice of these changes. Your continued use of the Service following notice of these changes shall be deemed to be your acceptance of any the changes. If you do not agree to any changes, you must immediately stop using the Service and notify Daly Computer Services that you are terminating this Agreement. You will then be entitled to a refund of any unused portion of any monthly service fee for the Service that has been paid by you in advance (less any outstanding amounts due Daly Computer Services for equipment or other applicable fees and charges). You may not amend or modify this Agreement without Daly Computer Services prior written consent, which we may provide or withhold in our sole discretion. Any attempt by you to amend or modify this Agreement by any other means, including but not limited to, a check notation, a restrictive endorsement, or a note with a payment, is invalid and unenforceable.

d. No Relationship: Nothing in this Agreement will create any joint venture, joint employer, franchisee-franchisor, employer-employee or principal-agent relationship between Daly Computer Services, any content, backbone, network, circuit and other technology or communications providers, software and other licensors, hardware and equipment suppliers or other third party providers of elements of the Service, nor impose upon any such companies any obligations for any losses, debts or other obligations incurred by the other.

e. Assignment: Daly Computer Services may assign its rights and obligations under this Agreement, without notice, to (i) any affiliate of Daly Computer Services, (ii) to any party (or its affiliate) acquiring all or substantially all of the assets or stock, by merger or otherwise, of Daly Computer Services or any affiliate of Daly Computer Services, or (iii) to any person or entity purchasing or otherwise acquiring the Daly Computer Services system serving the Premises. This Agreement may not be assigned or transferred by Customer without Daly Computer Services prior consent.

f. General: This Agreement and all exhibits hereto constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supersede and replace any and all prior written or verbal agreements. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect. Daly Computer Services failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.

Effective: June 2005