GPmicro, Inc.

dinKum Backup and Restore Service Agreement

dinKum Backup Software License Agreement

 

 

IMPORTANT: By clicking on the I ACCEPT checkbox and/or by accessing any part of the dinKum Backup and Restore Service (the “Service”) you are representing that you are at least 18 years of age (in the case of a natural person) or that you are authorized on behalf of the entity that is accessing the Service to do so, and in either instance that you and/or any entity (a “Client”) are agreeing to the terms and conditions of this Service Agreement. You consent to be bound by and become a party to this Service Agreement. If you do not agree to all of the terms and conditions of this Service Agreement click the CANCEL button, the registration process will not continue and you will have no authority to use the Service.

 

If you are deemed to have ordered the Service, acceptance is expressly conditioned upon your assent to all of the terms and conditions of this Service Agreement, to the exclusion of all other terms or conditions. The terms and conditions of this Service Agreement are considered an offer by GPmicro, Inc. and your acceptance is limited to these terms and conditions.

 

TERMS AND CONDITIONS

 

 

1. Provisions

 

All provisions of this Service Agreement apply to the Client’s Principal Account and any Associate Accounts billed to the Principal Account. The benefits or rights conferred by this Service Agreement are non-transferable. Use of the Service is expressly limited to the individual or business whose name appears on this account.

 

2. The Service

 

The Service consists of Client dinKum Backup Software, data encryption (during data transmission and ongoing storage), data access and data storage and retrieval.

 

You are responsible for obtaining and maintaining all computer hardware and communications equipment needed to access the Service and for paying all third party access charges (e.g. kiosk, ISP, telecommunications) incurred while using the Service.

 

GPmicro, Inc. reserves the right to terminate this Service Agreement and/or delete data without notice for those accounts that remain unpaid after two consecutive billing periods have transpired.

 

3. Use of Proprietary Software

 

Subject to the terms and conditions of this Service Agreement GPmicro, Inc. and the manufacturers grant the Client a personal, revocable, non-sublicensable, non-exclusive, non-transferable license (the “License”) to use its proprietary dinKum Backup software in object code form only, and only in accordance with the applicable documentation, if any, and only in conjunction with this Service Agreement. You will not directly or indirectly reverse engineer, decompile, or otherwise attempt to discover the source code or underlying algorithms of the software; modify, translate or create derivative products of the software; or copy (except for archival purposes), rent, lease, assign or otherwise transfer any rights to the software, use the software for timesharing or service bureau purposes or otherwise for the benefit of any other party; or remove any proprietary notices or labels on the software. You acknowledge and agree that GPmicro, Inc., the manufacturer and its associated companies have ownership of all software, any copies thereof, and all trademarks and patents related in any way to the Service. This Software is also protected by one or more U.S. Patents including U.S. patent 7,047,377and copyright laws and international treaty provisions. Upon termination of this Service Agreement for any reason the License will terminate and you will destroy any materials or documentation received from GPmicro, Inc. and ceases to use the Service. The software and Service is provided “AS IS” with all faults and is subject to the warranty disclaimers and limitations of liability of this Service Agreement.

 

4. Restrictions and Policies

 

You agree not to transmit through the Service any unlawful, harassing, libelous, abusive threatening harmful, obscene or otherwise objectionable material of any kind. You will use the Service for lawful purposes only in compliance with all applicable laws including without limitation, copyright, trademark, obscenity and defamation laws. Unlawful uses of the Service include (without limitation) storing, distributing or transmitting any unlawful material, attempting to compromise the Service or any networked account or site, or making direct threats of physical abuse. You hereby agree to indemnify, defend and hold harmless GPmicro, Inc. any affiliates against claims that arise from your use of the Service in an unlawful manner or manner inconsistent with the restrictions and policies stated herein.

 

It is the policy of GPmicro, Inc. to respect the privacy of its Clients. Nevertheless, GPmicro, Inc. reserves the right to access and disclose information, data, graphics, video, sound, files and other content provided by, or accessed by you (“Content”) in order to comply with applicable laws and lawful government requests, to operate its business properly or to protect itself from liability. This may also include disclosing licenses, names and other registration and identification information to third parties. GPmicro, Inc. reserves the right in its sole discretion, but will not be obligated to delete any Content from its system. GPmicro, Inc. will fully cooperate with law enforcement authorities in investigating persons suspected of violating any laws, and reserves the right to report to such authorities any suspect behavior it becomes aware of.

 

5. Support

 

Subject to the terms hereof, GPmicro, Inc. will provide you with email and phone support for the Service and associated Software to resolve technical or operational issues which may exist as barriers to the Client’s satisfactory use of the dinKum Backup and Restore Service. Under no circumstances will GPmicro, Inc. have any obligation to provide you with hard copy documentation, upgrades enhancements, or modifications to the Service or its associated software.

 

6. Payment of Fees

 

You agree to pay GPmicro, Inc. all charges relating to the use of the Client’s Accounts according to the prices published by GPmicro, Inc. including a one-time set up fee per Client, if applicable.

 

You agree to provide GPmicro, Inc. with accurate and correct billing information, including your legal name, address and telephone number and you agree to update this information within 30 days of any change to it. Payment for the Service by fraudulent means will result in immediate and permanent termination of your Accounts, and possible criminal penalties. Throughout the term of this Service Agreement you agree to pay GPmicro, Inc. by check, or authorized credit card the applicable fees for the Service (the “Fees”). GPmicro, Inc. reserves the right to change the Fees or applicable charges and to institute new charges upon 30 days prior written notice to you. The Fees will be charged monthly in advance.

 

Your GPmicro, Inc. account will be considered delinquent if you fail to pay after 2 consecutive billing periods have transpired and your credit card company refuses for any reason to process or pay the amount billed to it or if any amount remains unpaid at the beginning of the next billing cycle. Accounts that are delinquent for more than one accounting cycle may be suspended or purged from the system. GPmicro, Inc. may impose a charge to reinstate archived data for delinquent accounts and a security deposit may be assessed prior to reinstatement.

 

For Clients that require custom specification service solutions GPmicro, Inc. reserves the right to assess a security deposit that must be paid a minimum of four weeks prior to the commencement of the Service

 

If you believe GPmicro, Inc. has billed you incorrectly you must contact GPmicro, Inc. no later than 60 days after the closing date on the first statement in which the error or problem appeared in order to request an adjustment or credit. Inquiries must be in writing and be directed to the GPmicro, Inc. Customer Service Department; emails are acceptable as means of communication.

 

Payment for invoices issued in any given month must be received by GPmicro, Inc. no later than 30 days after the mailing date of the invoice, or the Service may be terminated if payment is not received after the next billing cycle is ended. All unpaid invoices are subject to interest of 1.5% per month of the outstanding balance or the maximum rate permitted by law, plus all expenses of collection. When paying by check, Client expressly authorizes GPmicro, Inc. to debit Client’s checking account with the amount of a check returned unpaid by Client’s bank plus a $25 returned check fee.

 

7. Termination

 

GPmicro, Inc. in its sole discretion may terminate your access to and use of the Service and will be entitled to remove and discard any data within its system if you fail to comply with any provision of this Service Agreement. You may terminate your usage upon notice to GPmicro, Inc. at any time; however you will not receive any portion of your fees paid to GPmicro, Inc. upon termination. Further, all restrictions on the Proprietary Software and warranty disclaimers survive termination of this license. Upon termination, your right to use your Accounts and the Service immediately ceases. GPmicro, Inc. shall have no obligation to maintain any data stored in your Accounts or to forward any data to you or any third party upon termination.

 

To cancel the Service you must contact GPmicro Customer Service Department via email, fax, mail or phone.

 

Upon expiration or termination, you will immediately cease all usage of the software and Service. Except for the limited License granted in Section 3 and except as otherwise expressly provided herein to the contrary all provisions of this Agreement which by their nature should survive termination, including without limitation, accrued rights to payment, disclaimers and limitations of liability, shall survive any termination of this Service Agreement Termination is not an excuse for nonperformance by the Client and all remedies will be available to GPmicro, Inc. whether or not the License granted by this Service Agreement has been terminated.

 

8. Warranty Disclaimer

 

No warranty applies if the software or other portions of the Service have been altered, except by GPmicro, Inc. and/or its distributors or suppliers, or if it has not been installed, operated, repaired or maintained in accordance with instructions supplied by GPmicro, Inc.

 

DISCLAIMER: Except as specified in this Warranty, all express or implied conditions, representations, and warranties including but not limited to any implied warranty of merchantability, fitness for a particular purpose, correspondence with description, non-infringement of a third party’s property rights, lack of a virus in the software, usage or trade practice are hereby excluded to the extent allowed by applicable law. No indemnity exists for direct, contributory or other kind of infringement of a third party’s property rights. In no event will GPmicro, Inc., its suppliers or its distributors be liable for any indirect, incidental, special, punitive, or consequential damages or any lost revenue, profit or data. GPmicro, Inc., its suppliers’ or its distributors’ maximum liability for any damages whether in contract or in tort will not exceed the amount which Client has paid for this order and if such damages result from Client’s use of a Software program or technical support, the liability shall be limited to the amount paid for the relevant Software program or technical support. The above Warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which GPmicro, Inc. does not receive a license or subscription fee. All such software products are provided AS IS without any warranty whatsoever.

 

9. Limitation of Liability

 

Client expressly agrees that use of dinKum Backup and Restore Services is at Client’s sole risk. Neither GPmicro, Inc. its employees, affiliates, agents, third party information providers, merchants, licensors or the like warrant that the dinKum Backup and Restore Service will not be interrupted nor error free; nor do they make any warranty as to the results that may be obtained from the use of the Service.

 

Under no circumstances, shall GPmicro, Inc., its officers, agents or any one else involved in creating, producing or distributing the dinKum Backup and Restore Service be liable for any direct, indirect, incidental, special or consequential damages or punitive damages that result from the use of or inability to use the dinKum Backup and Restore Service; or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to GPmicro’s records, programs or services.

 

GPmicro’s total liability, if any, with respect to the subject matter of this Service Agreement (including but not limited to liability arising out of contract, tort or otherwise) is limited to the Fees paid by you to GPmicro, Inc. for the Service under this Service Agreement in the month prior to the act or omission that gave rise to the alleged liability. In no event will GPmicro, Inc. and its licensors be liable for loss or inaccuracy of data, loss of profits or revenue, whether direct or indirect, or any special, incidental, consequential or punitive damages, whether or not foreseeable and whether or not GPmicro, Inc. has been advised of the possibility of said damages.

 

10. U.S. Government Matters

 

You may not remove or export from the United States or allow the re-export of any part of the software or applicable documentation or any direct product thereof in violation of any restrictions, laws of the United States Department of Commerce, the United States Treasury Office of Foreign Assets Control, or any other United States agency or authority. As defined in FAR section 2.101 the software and documentation licensed in this Service Agreement are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial software documentation.” Consistent with DFAR section 2277.7220 and section 12.212 any use, modification, reproduction, release, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Service Agreement.

 

11. Miscellaneous

 

The failure of either party to exercise in any respect any right provided herein will not be deemed to be a waiver of any further rights hereunder, or if any provision of this Service Agreement is found to be unenforceable then that provision will be limited or eliminated to the minimum extent possible so that this Service Agreement will otherwise remain in full force and effect. This Service Agreement is not assignable, transferable or sublicensable by you except with the prior written consent of GPmicro, Inc. who may withhold such consent in its sole and absolute discretion. This Service Agreement will be governed and construed in accordance with the laws of the state of Nevada. Both parties agree that this Service Agreement contains the exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Service Agreement, and that all modifications must be in a written form and signed by both parties. No agency, joint venture or employment arrangement is created as a result of this Service Agreement and you do not have any authority of any kind to bind GPmicro, Inc. in any respect whatsoever. In any action or proceeding to enforce the rights under this Service Agreement the prevailing party will be entitled to recover its attorneys’ fees. All notices under this Service Agreement will be deemed to have been duly given when received, if personally delivered, when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent if sent for next day delivery by any overnight delivery service; and upon receipt, if sent by certified mail, return receipt requested.

 

GPmicro, Inc. may assign this Service Agreement, its rights hereunder and its ownership of said Service and commitment to another entity at any time without notice or consent.

 

In addition to any price specified herein, Client shall pay the gross amount of any present or future sales, use, excise, value added or other similar taxes applicable to the price, sales or delivery of products or services furnished hereunder.

 

GPmicro, Inc. may (but shall not be obligated to) offer credits to Clients who refer additional users who sign up for and keep GPmicro, Inc. accounts through at least 1 year of billing cycles provided that the new users signing up mention at time of signup the name of the Client who referred them. This incentive may be revoked or cancelled by GPmicro, Inc. at any time without prior notice.

 

Please note that the software in this program created by the software manufacturer cooperates with various routines generated under the Open Source code initiative. This license details the license requirements associated with each of these routines generated under the Open Source code initiative.

 

A.      7-zip compression utility

 

Copyright © 2005 Igor Pavlov

 

The 7-Zip compression utility is covered by the GNU Lesser General Public License, which can be read in its entirety at http://www.gnu.org/copyleft/lesser.html#SEC1#SEC1.

 

B.      CsizingControl Bar Utility Version 2.44

 

Created Jan 24, 1998

 

Last Modified: March 31, 2002

 

Copyright © 1998-2002 by Cristi Posea. All rights reserved.

 

Please see the official site at http://www.datamekanix.com/ for documentation and the latest news. This code is free for personal and commercial use, providing this notice remains intact in the source files and source files and all eventual changes are clearly marked with comments. You must obtain the author's consent before you can include this code in a software library. No warranties of any kind, express or implied, is included with this software, use at your own risk, responsibility for damages (if any) to anyone resulting from use of this software rests entirely with the user. Send bug reports, bug fixes, enhancements, requests, flames, etc. to cristi@datamekanix.com or post them at the message board at the site.

 

C.      SystemTray

 

SystemTray.h: header file

 

Written by Chris Maunder (cmaunder@mail.com)

 

Copyright © 1998.

 

This code may be used in compiled form in any way you desire. This file may be redistributed unmodified by any means PROVIDING, it is not sold for profit without the authors written consent, and providing that this notice and the authors name is included. If the source code in this file is used in any commercial application then acknowledgement must be made to the author of this file (in whatever form you wish). This file is provided "as is" with no expressed or implied warranty.

 

D.      BCMenu

 

By Brent Corkum

 

BCMenu.h: header file - Version: 3.033

 

Date April 2002

 

Author Brent Corkum

 

Email: corkum@rocscience.com/~corkum/BCMenu.html

 

Latest Version: http://www.rocscience.com/~corkum/BCMenu.html

 

Bug Fixes and portions of code supplied by:

Ben Ashley, Grish Bharadwaj, Jean-Edouard Lachand-Robert, Robert Edward Caldecott, Kenny Goers, Leonardo Zide, Stefan Kuhr, Reiner Jung, Martin Vladic, Kim Yoo Chui, Oz Solomonovich, Tongzhe Cui, Stephane Clog, Warren Stevens, Damir Valiulin, David Kinder, Marc Loiry.

You are free to use/modify this code but leave this header intact. This class is public domain so you are free to use it in any of your applications  (Freeware, Shareware, Commercial) All I ask is that you let me know so that if you have a real winner I can brag to my buddies that some of my code is in your app. I also wouldn't mind if you sent me a copy of your application since I like to play with new stuff.

 

E.      The OpenSSL Project

 

Copyright © 1998-2003 The OpenSSL Project. All rights reserved.

 

1.      Redistribution of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

2.      Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

3.      All advertising materials mentioning features or use of this software must display the following acknowledgment: "This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit. (http://www.openssl.org/)"

4.      The names "OpenSSL Toolkit" and "OpenSSL Project" must not be used to endorse or promote products derived from this software without prior written permission. For written permission, please contact openssl-core@openssl.org.

5.      Products derived from this software may not be called "OpenSSL" nor may "OpenSSL" appear in their names without prior written permission of the OpenSSL Project.

6.      Redistributions of any form whatsoever must retain the following acknowledgement: "This product includes software developed by the OpenSSL Project for use in the OpenSSL Toolkit (http://www.openssl.org/)"

 

THIS SOFTWARE IS PROVIDED BY THE OpenSSL PROJECT "AS IS" AND ANY EXPRESSED OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE OpenSSL PROJECT OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY  OF SUCH DAMAGE.

 

This product includes cryptographic software written by Eric Young (eay@cryptsoft.com). This product includes software written by Tim Hudson (tjh@cryptsoft.com).

 

F.       Original SSLeay License

 

Copyright © 1995-1998 Eric Young (eay@cryptsoft.com). All rights reserved.

 

This package is an SSL implementation written by Eric Young (eay@cryptsoft.com). The implementation was written so as to conform with Netscape's SSL. This library is free for commercial and non-commercial use as long as the following conditions are adhered to. The following conditions apply to all code found in this distribution, be it the RC4, RSA, 1hash, DES, etc., code; not just the SSL code. The SSL documentation included with this distribution is covered by the same copyright terms except that the holder is Tim Hudson (tjh@cryptsoft.com).

 

Copyright remains Eric Young's, and as such and Copyright notices in the code are not to be removed. If this package is used in a product, Eric Young should be given attribution as the author of the parts of the library used. This can be in the form of a textual message at program startup or in documentation (online or textual) provided with the package.

 

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

 

1.      Redistributions of source code must retain the copyright notice, this list of conditions and the following disclaimer.

2.      Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

3.      All advertising materials mentioning features or use of this software must display the following acknowledgment: " This product includes cryptographic software written by Eric Young (eay@cryptsoft.com)" Note: the word 'cryptographic' can be left out if the routines from the library being used are not cryptographic related.

4.      If you include any Windows specific code (or a derivative thereof) from the apps directory (application code) you must include an acknowledgement: "This product includes software written by Tim Hudson (tjh@cryptsoft.com)"

 

This software is provided by Eric Young "AS IS" and any express or implied warranties, including but not limited to the implied warranties or merchantability and fitness for a particular purpose are disclaimed. In no event shall the author or contributors be liable for any direct, indirect incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data or profits or business interruption) however caused and on any theory of liability, whether in contract. Strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.

 

The license and distribution terms for any publicly available version or derivative of this code cannot be changed; that is, this code cannot simply be copied and put under another distribution license (including the GNU Public License).