The RESCUECOM Promise
Terms and Conditions for RESCUECOM® iProtectorTM Software, RESCUECOM® Backup and RESCUECOM® Unlimited Computer Support Subscription Services ("Terms and Conditions")
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY AND PRINT THEM TO MAINTAIN A COPY FOR YOUR RECORDS
BY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR OTHERWISE USING RESCUECOM OR RESCUECOM-SUPPLIED SOFTWARE OR SERVICES YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. BY CLICKING THE "ACCEPT" BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, INSTALLATION, UPGRADE OR UPDATE PROCESS FOR RESCUECOM IPROTECTOR™ SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
RESCUECOM OFFERS SOFTWARE AND SERVICES ONLY SUBJECT TO THESE TERMS AND CONDITIONS AND THEREFORE YOU MUST ACCEPT THESE TERMS AND CONDITIONS BEFORE YOU CAN DOWNLOAD, COPY, INSTALL, UPGRADE, UPDATE, ORDER, RECEIVE OR OTHERWISE USE RESCUECOM OR RESCUECOM-SUPPLIED SOFTWARE OR SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS, THEN RESCUECOM IS UNWILLING TO OFFER, LICENSE OR SELL THE RESCUECOM OR RESCUECOM-SUPPLIED SOFTWARE OR SERVICES TO YOU AND YOU MAY NOT DOWNLOAD, COPY, INSTALL, ORDER, RECEIVE OR USE THEM. THE INDIVIDUAL OR LEGAL ENTITY DOWNLOADING, COPYING, INSTALLING, ORDERING, RECEIVING OR USING RESCUECOM OR RESCUECOM-SUPPLIED SOFTWARE OR SERVICES, OR THAT CLICKS THE "ACCEPT" BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, COPY, INSTALLATION, UPGRADE OR UPDATE PROCESS ("CUSTOMER," "YOU," OR "YOUR") IS THE PARTY WHO SHALL BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS "CUSTOMER," "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.
RESCUECOM Cancellation Policy:
- You may cancel one-time onsite service for a full refund by calling at least forty-eight hours prior to the scheduled service call.
- You may cancel your Unlimited Computer Support Subscription by notifying RESCUECOM both in writing and by phone at least 30 days prior to the end of your one-year term, or if we are incapable of solving your first problem. YOUR REFUSAL TO ALLOW US TO FIX YOUR FIRST PROBLEM DOES NOT CONSTITUTE GROUNDS FOR CANCELLATION.
- You may cancel a one-time flat rate service for a full refund by calling at least forty-eight hours prior to the scheduled service call.
RESCUECOM Missed and Returned Payments Reinstatement Policy:
- A missed or returned payment is any payment unable to be processed on your subscription renewal date or returned by your bank.
- There will be a non-refundable reinstatement fee of $40.00 for each missed or returned payment.
- This fee will be automatically charged to your payment method on file.
- No receipt or notice will be given for this charge.
Unlimited Computer Support Subscription
The Rescuecom Unlimited Computer Support Subscription requires a minimum 12 month membership term, paid monthly.
YOU may cancel YOUR Unlimited Computer Support Subscription after 12 months so long as YOU cancel in the manner described in these Terms and Conditions. If you do not cancel in the manner described herein, your subscription will be automatically renewed for successive 12 month periods and YOU will be responsible for paying the associated fees for such renewals. Our services do not extend to purchase of parts for our customers. If the resolution of the problem requires purchase of a part for YOUR computer, YOU will be responsible to purchase the part. If YOU chose not to purchase the recommended part to correct the problem, YOU MAY NOT CANCEL YOUR subscription.
Disclaimers, Warranty Exclusions & Limitations of Liability
RESCUECOM DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATIONS IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THIS LIMITATION MAY NOT APPLY TO YOU. RESCUECOM DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS GUARANTEE OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST DATA OR SOFTWARE
- DEFINITIONS:All capitalized terms defined herein have the meanings as defined below:
- "Affiliates" means any legal entity that a party owns, which owns the party, or which is under common ownership with the party. "Ownership" means, for the purposes of this definition, more than 50% ownership.
- "Subscribed Computer" means a computer for which Customer has paid and continues to pay the subscription fees.
- "Confidential Information" means the proprietary and non-public: technical, financial, marketing, staffing and business information; business strategies, marketing plans, industry and competitive information; technology and pricing information; employee and personal information; and the trade secrets of the RESCUECOM Entities on the one hand or the Customer and its Third Party Clients on the other hand. Confidential Information does not include information that:
- was or becomes publicly available or in a party's possession prior to download or use of RESCUECOM services or software;
- is developed by a party independently of and without reference to the other's Confidential Information; or
- is rightfully obtained by a party from third parties authorized to make such disclosure.
- "Customer Data" means all Customer data, information and materials that are uploaded by or for YOU or that is accessed by RESCUECOM in connection with YOUR use or RESCUECOM's provision of the Software or Services including without limitation personal information, photographs, caricatures, illustrations, designs, icons, articles, audio clips, trademarks, logos, and video clips but does not include Submissions or Usage Data.
- "Documentation" means written information (whether contained in catalogs, maintenance policies, user or technical manuals, training materials, support policies, specifications, copyright attributions or otherwise) pertaining to the Software or Services and made available by RESCUECOM with the Software or Services in any manner (including on CD-ROM, via email, on the Website or other on-line format) as updated or amended by RESCUECOM from time to time.
- "RESCUECOM Entities" means RESCUECOM and any licensors and suppliers providing any part of the Software or Services; and all subsidiaries, Affiliates, officers, employees, consultants, and agents of any of the foregoing.
- "RESCUECOM Server" means the centralized RESCUECOM Software platform that is required to enable other Software components to function.
- "Marks" means RESCUECOM or RESCUECOM licensed trademarks, logos, symbols, names or Patents.
- "Service(s)" means the RESCUECOM services provided to CUSTOMER.
- "Software" means RESCUECOM or RESCUECOM-distributed software including any software provided by RESCUECOM to access and use Services and the associated Documentation but does not include any open source software which cannot be licensed under these Terms and Conditions and is therefore subject to its own license.
- "Updates" mean bug fixes, hot-fixes or other minor modifications to the Software which are not deemed by RESCUECOM in its sole discretion to be an Upgrade.
- "Upgrades" mean any modifications to the Software or Services which are not Updates as determined in RESCUECOM's sole discretion such as those providing enhanced functionality or performance, or that otherwise improve or add to, delete or otherwise modify any aspect of the Software.
- "Usage Data" means any non-personally identifying information relating to or arising from the capabilities, problems, successes, statistics, diagnostics, inventory, composition, configuration, performance (or lack thereof) of: (a) the Software or Services; (b) Subscribed Computers is connected; or (c) any software or hardware loaded on, comprising, or used in connection with or otherwise related to any of the foregoing.
- "Website" means http://www.RESCUECOM.com and related RESCUECOM site(s), or regional or in country websites applicable to Customer or the applicable Software or Services.
- "Competitor" means someone who is selling the same goods and services as RESCUECOM. RESCUECOM is in the business of selling computer hardware, software and computer services.
- LICENSE AND RIGHT TO ACCESS:The Software and Services are the property of RESCUECOM or its licensors, and are protected by law, including applicable copyright and patent law. Although RESCUECOM or its licensors continue to own the Software and Services, after Customer's acceptance of the Terms and Conditions, Customer has license rights to the Software and access rights to the Services during the Term all as set forth in these Terms and Conditions. Conditioned upon compliance with the Terms and Conditions, RESCUECOM grants to Customer a nonexclusive and nontransferable license to download, install and use the Software for which Customer has paid (and continues to pay) the required subscription fees.
- Subscription:If YOU subscribe to the Unlimited Computer Support Subscription YOU will have the right to access the applicable Software or Service subject to these terms and conditions so long as YOU continue to pay for the subscription and YOU are not in violation of the Terms and Condition.
- Subscribed Computers. The maximum number of Subscribed Computers on which the Software may be installed is determined by payment of the required fees. YOU understand that RESCUECOM will only be able to interact with Subscribed Computers if a copy of the applicable RESCUECOM Software has been loaded onto that machine.
- General Restrictions. YOU acknowledge that the Software and Services contain trade secrets of RESCUECOM or its suppliers or licensors. YOU agree not to disclose, provide, or otherwise make available trade secrets contained within the Software and Services in any form to any third party and YOU further agree to implement reasonable security measures to protect such trade secrets. YOU agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of the Software or Services. Unless expressly set forth in the Terms and Conditions, YOU may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the Software (in whole or in part) or any rights in the Services. YOU may not remove from the Software or Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. YOU shall not
- create Internet "links" to the Software or Service or "frame" or "mirror" any Software or Service on any other machine; or
- reverse engineer or access the Service or Software in order to
- build a competitive product or service,
- build a product using similar ideas, features, functions or graphics of the Software or Service, or
- copy any ideas, features, functions or graphics of the Software or Service.
IF YOU ARE NOT AN EMPLOYEE OF RESCUECOM OR OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR OTHERWISE USE THE SOFTWARE OR SERVICES
- License Keys. YOU understand and agree that the Software and Service functionalities are enabled through the use of "license keys" issued by RESCUECOM. For so long as YOU are not in breach or default with respect to any of YOUR obligations to RESCUECOM, RESCUECOM will provide YOU with all license keys necessary to enable YOU to make normal use of the Software or Services that YOU have acquired. YOU agree that RESCUECOM may disable or refuse to renew or replace license keys, rendering some or all aspects of the Software or Services unusable by YOU, at any time to enforce its rights under the Agreement.
- Automated Tracking. YOU understand that the Software and Services are programmed to track the number of deployed copies of Software, Subscribed Computers, users and other usage and user related data, and YOU consent to such operations. YOU at all times will enable, and will not hinder, impede, alter, prevent, or otherwise distort, the operation of such tracking and reporting functions.
- No Competitors. YOU may not access or use the Software or Services if YOU are a Competitor of RESCUECOM or if YOU are working in conjunction with or on behalf of a Competitor. In addition, YOU may not access or use the Software or Service for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
- Proprietary Rights. YOU acknowledge that: (a) RESCUECOM is the exclusive owner of all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other proprietary rights relating to the Software and Services; and (b) RESCUECOM may collect the Usage Data, is the exclusive owner of the Usage Data and may sell, publish or otherwise use the Usage Data for any purpose at its sole discretion.
- License Subject to Compliance. YOUR license to the Software and right to access and use the Services are and shall at all times remain subject to YOUR compliance with all of the terms and conditions and shall terminate without notice by RESCUECOM to YOU in the event of a breach by YOU of any of YOUR obligations under this Section 4 or in the event of any infringement by YOU of any patents, copyrights, trade secrets or trademarks of RESCUECOM.
- CHARGES AND PAYMENT:
- General Requirement. Customer agrees to pay RESCUECOM when due the applicable amounts in accordance with the CUSTOMER'S credit cardholder agreement. Customer agrees to be responsible for paying for all fees for the entire Term, regardless of whether such Software or Services are actively used. YOU agree to cause those who access or use the Software and Services by or through YOU or YOUR accounts to comply with these Terms and Conditions and, except where caused by RESCUECOM's gross negligence, to be responsible for payment for all such activity regardless of whether authorized by Customer or not. Except as otherwise set forth herein, all payment obligations are non-cancelable and all amounts paid are nonrefundable. This section 4 and all of its subsections apply in all situations in which YOU directly pay RESCUECOM. If YOU pay a company other than RESCUECOM, then the charges and billing terms may be stated by the other company to the extent different then set forth herein. Customer is responsible for all incidental charges related to using the Software or Services including, for example, charges for Internet access, third party software licenses mobile text messaging, or other data transmission. All pricing terms are Confidential Information of RESCUECOM.
- Late Payments. Except to the extent prohibited by law, we may assess a late charge if YOU do not pay on time. YOU must pay these late charges when we bill YOU for them. There will be a non-refundable reinstatement fee of $40.00 for each missed or returned payment. The late charge will be the lesser of 1.5% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect any amounts. YOU must pay for all reasonable costs we incur to collect any past due amounts which costs may include reasonable attorneys' fees and other legal fees and costs. Any RESCUECOM Entity may suspend, cancel or otherwise terminate YOUR rights in whole or in part with respect to all Software or Services if YOU fail to pay in full on time for any Software or Service purchased from any RESCUECOM Entity, including any failure to make an Installment or Subscription payment.
- Subcription Pricing. If, pursuant to the Documentation, Customer is paying installments ("Installments") under an installment schedule ("Installment Schedule") or on a Subscription basis, except as required by law or as otherwise set forth in these Terms and Conditions, no refunds, opt outs or conversion are available.
- Subscription Pricing and Changes. With respect to Software or Services on a Subscription basis, Customer agrees that RESCUECOM may from time to time either increase or decrease the fee(s) for all or any portion thereof, and that any such adjustment, when made by RESCUECOM, shall apply effective at the expiration of the current Term to the applicable fees that Customer must pay. Customer's sole remedy in such a case, if it does not wish to pay the adjusted fees, is to elect to terminate the Software or Service at the expiration of the current Term. Any one time, ongoing, or related account or other fees are non-refundable and nontransferable even if prices for related Software or Services are changed. If Customer adds Subscription Software or Services in the middle of a billing month, Customer may be charged in full for that billing month.
- Payment Method; Credit Card Authorization. All payments must be made by credit card. YOU must provide RESCUECOM with an approved valid credit card. Until all amounts due have been paid in full, YOU hereby authorize RESCUECOM to charge any credit card provided by YOU to RESCUECOM, all amounts due under the Terms and Conditions from time to time, including without limitation, ongoing Subscription and Installment and other payments, taxes, and additional fees. YOU agree to update YOUR payment information to keep it current at all times and agree that RESCUECOM may submit charges for processing even if the payment information appears to have expired. All prices are given and must be paid in U.S. currency.
- Taxes. RESCUECOM's fees are exclusive of all taxes, fees, levies, duties or similar charges arising out of or relating to the Software and Subscription Services and YOU shall be responsible for payment of all such taxes, fees, levies, duties or similar fees, excluding only taxes based solely on RESCUECOM's income.
- Conversion of Trial Period Offers. Unless we notify YOU otherwise, if YOU are participating in any trial period offer, YOU must cancel the service by the end of the trial period or YOU hereby authorize us to charge YOUR payment method for the Software or Service at standard rates.
- Invoices. Errors. We may only provide YOU with a single invoice and we may provide it via YOUR credit card company. This may be the only billing statement that we provide. If YOU request a paper copy, we may charge YOU a retrieval fee. If we make an error on YOUR invoice, we will correct it promptly after YOU tell us and we investigate the charge. YOU MUST TELL US WITHIN NINETY (90) DAYS AFTER AN ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). YOU RELEASE US FROM ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR THAT YOU DO NOT REPORT TO US WITHIN (90) DAYS AFTER THE ERROR FIRST APPEARS ON YOUR INVOICE (WHETHER IN YOUR ONLINE BILLING STATEMENT OR IF SENT TO YOU). If YOU do not tell us within this time, we will not be required to correct the error.
- Sale and Risk of Loss. With respect to all Software and Services, the parties acknowledge and agree that the sale, passage of beneficial ownership to Customer, passage of risk of loss to Customer and all negotiations, consummation of any agreements between YOU and RESCUECOM, and payments occur where RESCUECOM is located, Onondaga County, New York is the exclusive venue and jurisdiction for any and all disputes, with New York Law applying to YOUR use of RESCUECOM services and software.
- TERM AND TERMINATION:
- Term and Auto-Renewal. Under the Subscription model, the initial term shall be as set forth pursuant to these terms and conditions. Upon the expiration of the initial term, the Subscription will automatically renew for successive renewal terms equal in duration to the initial term at RESCUECOM's then current fees. Either party may terminate any such Subscription, effective only upon the expiration of the then current term, by notifying the other party in writing at least thirty (30) days prior to the expiration date of the current term. With respect to each Software or Service item, the current term shall be referred to as the "Term" herein.
- Termination. In addition to the rights otherwise set forth in these Terms and Conditions, RESCUECOM may terminate the rights granted herein in whole or in part with respect to all Software or Services purchased by Customer upon written notice to Customer in the event of a material breach by Customer of the Terms and Conditions or any of its obligations to any RESCUECOM entity, provided that if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the Customer's receipt of such written notice. For the purpose of the agreement created by these Terms and Conditions, a breach is curable by the Customer if the Customer has not done any of following:
- Failed to pay fees due to RESCUECOM;
- Violated the Confidentiality Provision stated in the Terms and Conditions;
- Violated the law and/or directly or indirectly engaged in competition with RESCUECOM.
- Customer may terminate the agreement created by these terms and conditions with respect to the affected Software or Service upon written notice to RESCUECOM in the event of a material breach by RESCUECOM of the agreement with respect to such Software or Service. However, if the breach is curable, the termination shall be effective only if the breach is not cured within ten (10) days following the RESCUECOM's receipt of such written notice. For the purpose of the agreement created herein, a breach is curable by RESCUECOM so long as RESCUECOM has not violated the law. Any free, trial, or Pre-Release Software or Services may be terminated by either party at any time with or without notice to the other. RESCUECOM will have no responsibility to notify any third party, of any termination or suspension of the agreement, nor will RESCUECOM have any liability for any consequences resulting from any termination, suspension or lack of notification.
- Effect of Termination. In the event of termination, cancellation, or expiration: Customer's rights to the Software or the Services shall immediately terminate; Customer shall de-install and destroy all copies of Software (including any Documentation) in its possession or control; Customer shall immediately pay RESCUECOM for all amounts due through the effective date of termination, cancellation, expiration; all sections of these Terms and Conditions other than the license grant in Section 2 shall survive; and except where Customer terminates for RESCUECOM's breach Customer agrees to pay any future Installment or Subscription payments due for the entire Installment Schedule or Subscription Term, as applicable, as consideration for pricing accommodations and other consideration and as a fair approximation of damages and not as a penalty. Any payments due hereunder will be immediately due and payable and can be charged by RESCUECOM against any Customer card on file without further prior authorization from Customer and Customer agrees not to dispute any such charges.
- PRIVACY & SECURITY; CUSTOMER DATA; SERVICE SUSPENSION:
- Privacy Statement. The RESCUECOM Privacy Statement can be accessed at the Website via http://www.rescuecom.com/ourpromise.aspx ("Privacy Statement"). Notwithstanding the amendment process set forth in these Terms and Conditions, the Privacy Statement may be updated as set forth in the Privacy Statement. YOU hereby acknowledge that YOU have accessed and read the Privacy Statement and that it is a part of the agreement created herein. Customer Data, including any personal information or personal data may be stored, transferred and processed by any RESCUECOM Entity in any country in which any of the RESCUECOM Entities maintain facilities or personnel, and YOU consent to any such storage, transfer and processing of information outside of YOUR country.
- Account Information and Customer Data. RESCUECOM does not claim ownership of any Customer Data. YOU hereby grant to RESCUECOM a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, and display Customer Data solely for the purpose of providing the Software or Services. Except as set forth in these Terms and Conditions, as between YOU and RESCUECOM, YOU retain all right, title, and interest in and to the Customer Data. YOU, not RESCUECOM, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and YOU agree that RESCUECOM shall not be responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss or failure to secure or store any Customer Data. YOU acknowledge that YOU bear sole responsibility for adequate security, protection and backup of Customer Data. We strongly encourage YOU, where available and appropriate, to (a) use encryption technology and passwords to protect Customer Data from unauthorized access, and (b) routinely archive Customer Data. RESCUECOM reserves the right to refuse to post or to remove any information or materials, in whole or in part, that RESCUECOM believes in good faith to be unacceptable, undesirable, or in violation of these Terms and Conditions. RESCUECOM has no obligation to provide any information (including Customer Data) to Customer in any specific format. RESCUECOM reserves the right to withhold, remove and/or discard Customer Data or other reports without notice for any breach, including, without limitation, YOUR non-payment.
- Representations and Warranties about Customer Data. YOU represent, warrant and covenant that YOU:
- are the owner or authorized licensee of any and all Customer Data and have the right to grant the rights set forth herein; and
- will not publish, post, upload, record, or otherwise distribute or transmit Customer Data that:
- infringes or would infringe any copyright, patent, trademark, trade secret, or other proprietary right of any party, or any rights of publicity or privacy of any party;
- violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising);
- is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful;
- is harmful to minors or otherwise pornographic;
- contains any viruses, Trojan horses, worms, time bombs, corrupted files, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another;
- is materially false, misleading, or inaccurate; and/or
- contains information for which YOU do not have the right to permit RESCUECOM to collect and process as set forth in the Privacy Statement
- Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to YOU as otherwise set forth herein, YOU acknowledge that:
- we shall be entitled, to suspend access to any portion or all of the Services at any time: for scheduled downtime to permit us to conduct maintenance or make modifications to any Service;
- in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to YOU or to any of our other customers if the Service were not suspended;
- in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons;
- if YOU engage in any conduct or activities that is in excess of average customer usage parameters including but not limited to YOUR bandwidth, CPU or disk space usage and such usage by YOU is or may adversely affect the performance or availability of the Services, RESCUECOM's infrastructure or resources, or RESCUECOM's other customers; or
- if YOU engage in any conduct or activities that RESCUECOM in good faith believes to be in violation of any of the Terms and Conditions; and YOUR access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions (all of the foregoing collectively referred to as "Service Suspensions"). Except as may be set forth in an applicable service level agreement, the RESCUECOM Entities shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that YOU may incur as a result of any Service Suspension.
- TRIAL AND PRE-RELEASE SOFTWARE AND SERVICES:Customer acknowledges and agrees that any Pre-Release Software and Services (defined as any Software or Services that are not generally released to the public for purchase) may not be at the level of performance or compatibility of a final, generally available Software or Service offering. Furthermore, YOU understand that, for promotional purposes, from time to time, RESCUECOM may enable new functionality for a trial period to show YOU what is available or new in the Software and Services, and YOU agree to accept these new functionalities on a trial basis as they are provided to YOU. Pre-Release Software or Services may not operate correctly and may be substantially modified prior to commercial shipment, or withdrawn in whole or in part. All Pre-Release and Software and Services offered on a trial basis are provided "AS IS" without warranty of any kind. The entire risk arising out of the use or performance of Pre-Release or trial Software or Services remains with Customer. In no event shall any of the RESCUECOM Entities be liable for any damage whatsoever arising out of or related to any Pre-Release or trial Software, Services even if RESCUECOM has been advised of the possibility of such damages and Customer's sole and exclusive remedy will be to terminate use of the Pre-Release or trial Software or Service.
- Each party agrees to hold the other party's Confidential Information in confidence and not to use it for any purpose other than to provide or receive the Software and Services under these Terms and Conditions as applicable. Each party agrees to use the same standard of care to protect Confidential Information as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care.
- Confidential Information may only be disclosed to those Affiliates, employees, contractors and advisors of the RESCUECOM Entities or the Customer, as applicable, on a need-to-know basis and who agree to be bound by confidentiality restrictions; provided that nothing herein shall prevent or prohibit a party from using or disclosing Confidential Information as may be required by law, rule, regulation or legal process.
- Confidential Information remains at all times the property of the disclosing party. Unless otherwise explicitly set forth herein, no licenses or rights under any patent, copyright, trademark, or trade secret are granted or are to be implied with respect to Confidential Information.
- LIMITED WARRANTY; DISCLAIMER OF WARRANTIES; INTERNET DELAYS; EXCLUSION OF DAMAGES; LIMITATION ON LIABILITY:
- Limited Warranty. RESCUECOM warrants that the Software when shipped or installed for YOU will operate substantially in accordance with the Documentation for a period of ninety (90) days from delivery to Customer. Customer's sole and exclusive remedy and the entire liability of RESCUECOM under this limited warranty will be at RESCUECOM's option, repair, replacement, or refund of the purchase price of the Software (or if the Software provides the functionality intended by RESCUECOM and the error is in the Documentation RESCUECOM will correct the Documentation), in each case subject to the condition that any error or defect constituting a breach of this limited warranty is reported to RESCUECOM within the limited ninety (90) day warranty period. This warranty does not apply if the Software, or any other equipment upon which the Software is authorized to be used: (a) has been altered, except by RESCUECOM or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by RESCUECOM, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (d) is licensed for beta, evaluation, testing or demonstration purposes; or (e) any Software for which RESCUECOM does not receive a license fee.
- Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE PRECEDING SECTION, ALL SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. EACH OF THE RESCUECOM ENTITIES HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OF WORKMANLIKE EFFORT, OR OF NON-NEGLIGENT PERFORMANCE. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE OF HARMFUL ASPECTS. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE'S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT.
- Internet and Fault Tolerance. SERVICES MAY BE SUBJECT TO LIMITATIONS, SECURITY RISKS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. RESCUECOMENTITIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, SECURITY BREACHES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE SOFTWARE AND SERVICES CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
- Exclusion of Certain Damages. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN "DIRECT DAMAGES" AS DESCRIBED BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR BREACH OF CONTRACT OF RESCUECOMOR ANY OF THE OTHER RESCUECOMENTITIES, AND EVEN IF RESCUECOM OR ANY OF THE RESCUECOM ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation on Liability. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE: (A) FOR SOFTWARE UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE APPLICABLE SOFTWARE FOR THE TERM IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE,FRAUD, OR OTHER LEGAL THEORY) AND ONE DOLLAR (US$1.00); AND (B) FOR SERVICES UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE APPLICABLE SERVICES DURING THE SERVICES TERM IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) AND ONE DOLLAR (US$1.00).
- Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or Services. Customer acknowledges and agrees that RESCUECOM has set its prices and entered into the agreement provided by these Terms and Conditions in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties. Customer understands, acknowledges and agrees that if RESCUECOM takes any corrective action because of an action of Customer, that corrective action may adversely affect Customer agrees that RESCUECOM shall have no liability to YOU, or any other third party due to such corrective action by RESCUECOM. The limitations and exclusions provided for by this section reflect an informed and voluntary allocation of risks between the parties and applies to risks both known and unknown that may exist in connection with the agreement made pursuant to these Terms and Conditions.
- INDEMNITY:YOU agree to defend, indemnify, and hold harmless each of the RESCUECOM Entities from and against any and all claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to: any actual or alleged violation of the Terms and Conditions or applicable law, rule or regulation by YOU or any person accessing or using the Software or Services by or through YOU; any actual or alleged infringement or violation by YOU or any person accessing or using the Software or Services by or through YOU of any intellectual property or privacy or other right of any person or entity; or any claims by Third Party Clients or arising out of or relating to Customer's relationship with any Third Party Client.
- Choice of Law. The agreement created by these terms and conditions shall be governed by New York law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with the agreement or the Software or Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Onondaga County, New York. Customer and RESCUECOM agree that Customer and RESCUECOM MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, and not as a plaintiff or class representative or class member in any purported class or representative proceeding as a private attorney general. RESCUECOM and Customer hereby agree that each is waiving all respective rights to a trial by jury regarding any disputes, actions, claims or causes of action arising out of or in connection with the Terms and Conditions or the agreement created thereby or the Software or Services. This choice of jurisdiction and venue does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement of recognition of any award or order in any appropriate jurisdiction. If either party commences litigation in connection with these Terms and Conditions, the prevailing party will be entitled to recover its reasonable attorneys' fees, costs and other expenses.
- Assignment. No party may assign the rights or obligations hereunder, whether by contract, operation of law, or otherwise without the express written consent of the other party to the Agreement, except:
- in the case of RESCUECOM, RESCUECOM may assign the agreement pursuant to the Terms and Conditions without YOUR prior consent to:
- one or more of the RESCUECOM Entities,
- an acquirer of assets, or
- a successor by merger; and
- in the case of Customer, YOU may assign all of YOUR rights in connection with a sale of all or substantially all of Customer's assets or in connection with a merger or other third-party acquisition of all or substantially all of the business conducted by Customer for which the Software is used by YOU, and then only if
- YOU retain no further rights under the agreement created by the Terms and Conditions,
- YOUR assignee or transferee expressly agrees in writing to assume all of YOUR obligations under these Terms and Conditions,
- YOUR assignee or transferee is no less capable of performing this agreement pursuant to these Terms and Conditions than are YOU; and
- the assignee is not a competitor of any RESCUECOM Entity as determined in RESCUECOM's absolute and sole discretion. Unless otherwise agreed in writing by RESCUECOM, YOU will remain jointly and severally liable with any such assignee or transferee for the full and timely performance of all obligations under the Terms and Conditions.
- in the case of RESCUECOM, RESCUECOM may assign the agreement pursuant to the Terms and Conditions without YOUR prior consent to:
- Force Majeure. RESCUECOM's performance of the Terms and Conditions (including the Privacy Statement) is subject to existing laws and legal process, and YOU agree that RESCUECOM may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary terms conditions set forth herein. Each party's obligation to perform its obligations hereunder (other than YOUR obligation to pay fees when due) shall be suspended during any period that the party is rendered incapable of performing by virtue of any criminal acts of third parties, war, viruses, acts of public enemies, severe weather conditions, utility failures, strikes or other labor disturbances, fires, floods, other natural disasters, other acts of God, unforeseeable acts of employees, telecommunication or interruption of Internet service, or any causes of like or different kind beyond any reasonable control of the party.
- Waiver. The failure of either party to insist in any instance upon any payment or performance when due by the other party, shall not relieve such other party of its any of obligations with respect to such performance, or constitute a waiver of such party's right to insist upon the full and timely performance in the future of any of the other party's obligations under the Terms and Conditions herein.
- Severability. If any of the provisions of the agreement created by the Terms and Conditions shall be held by a court of competent jurisdiction for any reason to be unenforceable by reason of being excessively broad, or excessively narrow or limited, in its scope or duration, the offending provision(s) automatically shall be deemed amended so as to be as broad as is permissible (if the unenforceability is due to excessive breadth) or as narrow or limited (if the unenforceability is due to excessive narrowness or limitation) as is permitted by applicable law. The unenforceability or invalidity of any one provision shall not affect the remainder of the Terms and Conditions, which shall continue in full force and effect.
- Priority of Terms and Conditions. The Terms and Conditions govern Customer's access and use of the Software and Services, provided that to the extent there is an applicable separate non-electronic agreement manually signed by authorized representatives of the parties, to the extent of a conflict between the provisions of the foregoing, the order of precedence shall be (1) the signed agreement, (2) these Terms and Conditions.
- Notices and Electronic Communications. RESCUECOM may give notice by means of a general notice on the Software or Service, electronic mail to YOUR e-mail address on record in RESCUECOM's account information, or by written communication sent by first class mail or pre-paid post to YOUR address on record in RESCUECOM's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). YOU may give notice to RESCUECOM (such notice shall be deemed given when received by RESCUECOM) at any time by any of the following: letter sent by confirmed facsimile or third party confirmed mail delivery to RESCUECOM at the address set forth on the Website. The Services and Software are conducted and provided electronically and YOU agree that RESCUECOM may communicate electronically with YOU for matters relating to the Services and Software.
- Entire Agreement. The agreement created by these Terms and Conditions, the Documentation, and the other items referenced herein and therein) constitutes the entire agreement between RESCUECOM and YOU with respect to the Software and Services and supersedes all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between RESCUECOM and YOU regarding them. YOU agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that YOU may now or later provide to RESCUECOM, will have no effect and that this agreement is the only contract between RESCUECOM and YOU regarding the Software and Services and may only be amended as set forth herein. A printed version of the agreement created by these Terms and Conditions and of any notice given to YOU in electronic form will be admissible in judicial or administrative to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form in the regular course of business.
- Amendments. RESCUECOM may, at any time, amend the provisions of the Terms and Conditions and/or the Privacy Statement, and YOU may accept the amended provisions in the manner indicated in the amendment notice as communicated by RESCUECOM. Any amendment proposed by YOU may only be accepted by RESCUECOM in a non-electronic writing manually signed by authorized representatives of the parties. Therefore, YOU agree to periodically visit the Website to examine the then-current Agreement (including the Privacy Statement).
Last Updated(v9.0): August 29, 2015
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Thank you Rescuecom for Professionally help me getting my new laptop Professionally setup for Daily
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I want to thank Rescuecom for helping keep my Sanity when it comes to computers and technology. It w
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Rescuecom has been a lifesaver for me and excellent technically. They are experts and have great cus