General
This End User License Agreement, including the Privacy Policy, Terms of Service, and Frequently Asked Questions (FAQs), which are incorporated herein by this reference and which you can access by clicking on each of the hyperlinks above (collectively, the "Terms"), are a binding contract between you and SmartBackup, Inc. ("SmartBackup"). You may print the foregoing documents using the print function in your browser. You understand and agree that by installing, accessing, or using the software, products, services, applications and associated documentation and Enhancements (collectively, the "SmartBackup Products"), you will be bound by these Terms. If you agree to these Terms on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to these Terms and your agreement to these Terms will be treated as the agreement of the business or organization. In that event, "you" and "your" will refer to and apply to the user of the SmartBackup Products or that business or organization, as required by the context. If you do not agree with these Terms, SmartBackup is not willing to license to you and you may not use the SmartBackup Products.

Your License
The SmartBackup Products are licensed and not sold to you. During the term of your subscription, SmartBackup grants to you a revocable, limited, non-transferable, non-exclusive license to use SmartBackup Products, solely in connection with the backup of your data. Except for the limited license granted in these Terms, SmartBackup and its licensors retain all right, title and interest in and to the SmartBackup Products, all copies thereof, and all proprietary rights therein, including copyrights, patent, trademark and trade secret rights. You may not copy or distribute SmartBackup Products, except to the extent that copying is necessary to use SmartBackup Products for the purposes set forth herein. You may not reverse engineer, decompile, disassemble, modify, or create derivative works of SmartBackup Products. You may not alter or modify any disabling mechanism which may be included in SmartBackup Products. You may not assign, sublicense, rent, timeshare, loan, lease, or otherwise transfer SmartBackup Products, or directly or indirectly permit any third party to copy SmartBackup Products. You may not remove any proprietary notices (e.g., copyright and trademark notices) from SmartBackup Products. You must reproduce the copyright and all other proprietary notices displayed on SmartBackup Products and on each permitted backup or archival copy. All use of SmartBackup Products shall be in accordance with these Terms and its then-current documentation. You shall be solely responsible for ensuring that your use of SmartBackup Products is in compliance with all applicable foreign, federal, state and local laws, rules and regulations.

How It Works.
SmartBackup Products save a copy of each file that is automatically selected for backup and other files you designate for backup (your "Backed-up Data") to a server operated by Amazon. SmartBackup Products automatically scan for changes or additions to the Backed-up Data and then periodically re-save a copy or a part of a modified file or create a copy of a newly designated file. For a complete list of the files SmartBackup is backing-up for you, please refer to the SmartBackup web console. You can check whether SmartBackup is backing-up specific files by going to SmartBackup Timeline located in your Computer, Web console, or from your mobile. If you are unable to locate your file, SmartBackup is not backing-up that file. Your Backed-up Data may not be available or restorable if: (i) SmartBackup has not completed copying your selected files or changed files; (ii) for files, folders, or disk drives that are not automatically backed-up, you do not manually select them for backup, or you unselect a file for backup; (iii) you delete a person from your SmartBackup account; (iv) you move a file to a location on your computer that is not automatically scanned to select files for backup or you upgrade your operating system resulting in changes to your file mapping; (v) your computer is unable to access the internet or to Amazon s3 Storage; (vi) you fail to follow SmartBackupfs technical requirements, including upgrading the version of your SmartBackup Products as required; or (vii) you terminate your license or fail to renew your subscription to SmartBackup Products. For additional information about the status of your Backed-up Data Frequently Asked Questions (FAQs)

Enhancements and Feedback
Enhancements. SmartBackup may (i) automatically update the SmartBackup Products installed on your computer without your prior notice, (ii) upgrade, enhance, change and modify (collectively, the "Enhancements") the SmartBackup Products, or (iii) discontinue or retire the SmartBackup Products or any aspect or feature of the SmartBackup Products, including the types of files and data that are backed-up (not every file on your computer is backed-up) or the availability of SmartBackup Products on any particular device or communications service at any time and from time-to-time in its sole discretion. Any Enhancements made available to you will be subject to these Terms. SmartBackup will use reasonable efforts to provide notice of material changes to the SmartBackup Products or changes to these Terms by posting them to Product Agreement. It is your responsibility to periodically check SmartBackup's web site to inform yourself of any such modifications. Changes to these Terms, which may be made in SmartBackup's sole and exclusive discretion, will be effective upon acceptance of these Terms (as described herein) for new subscriptions and effective for all existing users thirty (30) calendar days after the posting of the new Terms on SmartBackup's web site at Product Agreement You agree to be bound to these Terms, as modified. If you do not agree to the modified Terms you are not permitted to use the SmartBackup Products and must terminate your subscription immediately.

Feedback
You may provide feedback to SmartBackup with respect to the SmartBackup Products. SmartBackup may use feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the feedback, you hereby grant SmartBackup an irrevocable, non-exclusive, perpetual, royalty free license to use the feedback in connection with SmartBackup's business, including enhancement of the SmartBackup Products.

Term
Term and Termination. These Terms and your license to the SmartBackup Products will commence at the time and on the day you install, access, or use the SmartBackup Products, whichever is earlier. These Terms, your license and your subscription to the SmartBackup Products will automatically terminate or expire upon the earlier of (i) non-renewal, cancellation, or expiration of your subscription or your failure to pay invoices when due, (ii) SmartBackup's discontinuance of the SmartBackup Products, or (iii) failure to comply with these Terms. If any third party makes an intellectual property infringement claim relating to the SmartBackup Products, SmartBackup reserves the right to immediately terminate your subscription to the affected SmartBackup Products. SmartBackup MAY, IN ITS SOLE DISCRETION, DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE SmartBackup PRODUCTS, INCLUDING SUSPENDING OR TERMINATING YOUR LICENSE AND ACCOUNT WITH SmartBackup IF YOU ARE USING THE SmartBackup PRODUCTS IN A MANNER NOT INTENDED OR IN VIOLATION OF LAW.

Effect of Non-Renewal or Termination
Upon any non-renewal, termination, or expiration of your subscription to the SmartBackup Products (i) the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the SmartBackup Products, (ii) the SmartBackup Products may be disabled by SmartBackup without notice to you, and (iii) you will no longer have the right to access or retrieve your Backed-up Data. You acknowledge and agree that SmartBackup's policy is to automatically delete all of your Backed-up Data upon non-renewal, termination, or expiration of your subscription to the SmartBackup Products and that it is solely your responsibility to seek another source for your backup needs.

Trial and Evaluation Licenses
You may try the SmartBackup Products prior to paying for a full subscription by licensing a trial, evaluation, or other limited version (an "Evaluation Version"). Your license to an Evaluation Version of the SmartBackup Products will automatically terminate upon the earlier of (i) the expiration or cancellation of the evaluation period, (ii) when the SmartBackup Product is no longer made available, (iii) when SmartBackup cancels your license to the Evaluation Version, or (iv) when your computer has not accessed the SmartBackup server for more than fifteen (15) calendar days. You acknowledge and agree that SmartBackup's policy is to automatically delete all of your Backed-up Data upon termination or expiration of any Evaluation Version and that it is solely your responsibility to seek another source for your backup needs.

Disclaimer of Warranties; Indemnification; Limitation of Liability
SmartBackup Products. THE SmartBackup PRODUCTS MAY CONTAIN OR SmartBackup MAY PROVIDE TO YOU THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING, OR YOU MAY OBTAIN THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING FROM THIRD PARTIES DIRECTLY, ("THIRD PARTY COMPONENTS"). THE SmartBackup PRODUCTS, ALL THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. SmartBackup AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SmartBackup PRODUCTS, THE THIRD PARTY PRODUCTS AND ALL BETA SOFTWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE SmartBackup PRODUCTS. SmartBackup DOES NOT WARRANT THAT THE SmartBackup PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SmartBackup PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SmartBackup PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHIMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT YOUR INSTALLATION, USE AND ACCESS OF THE SmartBackup PRODUCTS, THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER, SOFTWARE AND THE LOSS OF BACKED-UP DATA THAT RESULTS FROM THE USE THEREOF. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SmartBackup SHALL CREATE ANY ADDITIONAL SmartBackup WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF SmartBackup'S OBLIGATIONS HEREUNDER. YOU HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST SmartBackup AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF YOUR USE OF THE SmartBackup PRODUCTS, THIRD PARTY COMPONENTS AND BETA SOFTWARE. THE SmartBackup PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT SmartBackup DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. SmartBackup SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

Beta Applications.
SmartBackup may designate certain Enhancements and new releases of the SmartBackup Products as "Beta Software." Beta Software is not ready and is not intended for use in a production environment. At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results. You acknowledge and agree that (i) the Beta Software is experimental in nature and has not been fully tested, (ii) the Beta Software may not meet your requirements or perform as intended, (iii) use of the Beta Software may not be uninterrupted, error free, or free of faults, (iv) your use of the Beta Software is for the sole purpose of evaluating and testing the product and providing feedback to SmartBackup, and (v) you shall inform your employees, staff members and other users regarding the nature of the Beta Software. Your use of the Beta Software is and shall be subject to these Terms.

Indemnification; Limitation of Liability
YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR CONDUCT, YOUR DATA, AND YOUR BACKED-UP DATA RELATED TO THE SmartBackup PRODUCTS. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD SmartBackup, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SUPPLIERS AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, DAMAGE, LIABILITY AND EXPENSE (INCLUDING ATTORNEYS' FEES, EXPERT FEES AND OUT-OF-POCKET EXPENSES) ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH YOUR BREACH OF THESE TERMS, YOUR USE OF THE SmartBackup PRODUCTS, OR YOUR BACKED-UP DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SmartBackup OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR DATA, OR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA AND BACKED-UP DATA, BUSINESS INTERRUPTION, OR LOST REVENUES, ARISING OUT OF YOUR USE OR INABILITY TO USE THE SmartBackup PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE, OR YOUR USE OF DATA OR FILES STORED THEREIN, EVEN IF SmartBackup HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE)). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF SmartBackup AND ITS AFFILIATES, SUPPLIERS AND LICENSORS FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE LICENSE FEES PAID BY YOU TO SmartBackup IN THE 30 CALENDAR DAYS PRIOR TO THE DAMAGES ARISING. IF THE SmartBackup PRODUCTS ARE PROVIDED TO YOU WITHOUT CHARGE, THEN SmartBackup SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SmartBackup PRODUCTS. Some jurisdictions do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the foregoing terms may not apply to you.

Governing Law and Arbitration
These Terms shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with these Terms, shall be in the state or federal courts, as applicable, located in the City of Boston, Massachusetts.

Any dispute, controversy, or claim arising out of or relating to this Agreement, including the arbitrability of the matter or the formation, interpretation, scope, applicability, termination, or breach thereof, shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed "international" within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in Boston, Massachusetts. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgment upon the arbitral award may be entered by any court having jurisdiction. This section shall apply to and require arbitration of all disputes, controversies and claims, regardless of whether such disputes, controversies, or claims concern a single individual, entity, or other person, multiple individuals, entities, or other persons, or classes of individuals, entities, or other persons.

Additional Terms
Privacy See SmartBackup's Privacy Policy, which you can access by clicking Privacy Policy for information and notices concerning SmartBackup's collection, use and security of your personal information.

Export
You shall not export, directly or indirectly, the SmartBackup Products to any country for which the United States requires an export license or other governmental approval. You shall not use the SmartBackup Products to store, backup, or distribute child pornography or other illegal files or data. You shall defend, indemnify and hold SmartBackup harmless from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys' fees, expert fees and out-of-pocket expenses) arising out of any claim that you are storing child pornography or other illegal files or data, or that the SmartBackup Product was exported or otherwise shipped or transported by you in violation of applicable laws, rules and regulations.

Government Use
For the avoidance of doubt, the SmartBackup Products constitute commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to these Terms as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to these Terms as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors.

General
These Terms, which incorporate the Privacy Policy , Product Agreement ,and Frequently Asked Questions (FAQs), each of which you can access by clicking on these links or navigating the tabs above, constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. In particular, if you are a current licensee of SmartBackup Products, these Terms shall supersede your existing license agreement and that agreement shall be of no further force or effect. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. As used in these Terms, the words "include" and "including," and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation." If one or more of the provisions herein shall be held invalid, illegal, or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired. The failure to enforce or the waiver by either party of a default or breach of the other party shall not be considered to be a waiver of any subsequent default or breach. If you or SmartBackup cannot perform its obligations under these Terms because of any act of God, accident, strike, court order, fire, riot, war, failure of third party equipment, or any other cause not within the affected party's reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a "Force Majeure Event"), then the non-performing party will: (i) promptly notify the other party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure Event continues for five (5) or more business days, SmartBackup may terminate your subscription to the SmartBackup Products and these Terms by providing written notice to you. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. The following provisions shall survive termination or expiration of this Agreement: Account Access and Ownership; Effect of Non-Renewal or Termination; Disclaimer of Warranties; Indemnification; Limitation of Liability; Governing Law and Arbitration; and Additional Terms. Any inconsistency between these Terms in English and these terms in any other language shall, to the fullest extent permitted by applicable law, be resolved by reference to the English version.

THIRD PARTY SOFTWARE CREDITS
The following is a list of the third party software and images we have included in SmartBackup's products/website. We are thankful to all individuals that have created these.

These components require that their credits are to be included on our site:

xDelta:

http://code.google.com/p/xdelta/
AlphaVSS

Copyright (c) 2008-2011 Peter Palotas

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

Revised on February 04, 2013