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SmardonCloud Product Agreement

 
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 Jamuna Technologies Ltd. (“Smardoncloud”). 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 “Smardoncloud 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 Smardoncloud Products or that business or organization, as required by the context. If you do not agree with these Terms, Smardoncloud is not willing to license to you and you may not use the Smardoncloud Products.

Your License

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

How It Works

Smardoncloud 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. Smardoncloud 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 Smardoncloud is backing-up for you, please refer to the Smardoncloud dashboard web console. You can check whether Smardoncloud is backing-up specific files by going to Smardoncloud dashboard Timeline located in your Computer, Web console, or from your mobile. If you are unable to locate your file, Smardoncloud is not backing-up that file. Your Backed-up Data may not be available or restorable if:

(i) Smardoncloud 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 Smardoncloud 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 Smardoncloud’s technical requirements, including upgrading the version of your Smardoncloud Products as required; or

(vii) you terminate your license or fail to renew your subscription to Smardoncloud Products. For additional information about the status of your Backed-up Data Frequently Asked Questions (FAQs)

Enhancements and Feedback

Enhancements. Smardoncloud may

(i) automatically update the Smardoncloud Products installed on your computer without your prior notice,

(ii) upgrade, enhance, change and modify (collectively, the “Enhancements”) the Smardoncloud Products, or

(iii) discontinue or retire the Smardoncloud Products or any aspect or feature of the Smardoncloud 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 Smardoncloud 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. Smardoncloud will use reasonable efforts to provide notice of material changes to the Smardoncloud Products or changes to these Terms by posting them to Product Agreement. It is your responsibility to periodically check Smardoncloud’s web site to inform yourself of any such modifications. Changes to these Terms, which may be made in Smardoncloud 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 Smardoncloud’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 Smardoncloud Products and must terminate your subscription immediately.

Feedback

You may provide feedback to Smardoncloud with respect to the Smardoncloud Products. Smardoncloud 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 Smardoncloud an irrevocable, non-exclusive, perpetual, royalty free license to use the feedback in connection with Smardoncloud’s business, including enhancement of the Smardoncloud Products.

Term

Term and Termination. These Terms and your license to the Smardoncloud Products will commence at the time and on the day you install, access, or use the Smardoncloud Products, whichever is earlier. These Terms, your license and your subscription to the Smardoncloud 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) Smardoncloud’s discontinuance of the Smardoncloud Products, or (iii) failure to comply with these Terms. If any third party makes an intellectual property infringement claim relating to the Smardoncloud Products, Smardoncloud reserves the right to immediately terminate your subscription to the affected Smardoncloud Products. SMARDONCLOUD MAY, IN ITS SOLE DISCRETION, DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE SMARDONCLOUD PRODUCTS, INCLUDING SUSPENDING OR TERMINATING YOUR LICENSE AND ACCOUNT WITH SMARDONCLOUD IF YOU ARE USING THE SMARDONCLOUD 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 Smardoncloud Products

(i) the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the Smardoncloud Products,

(ii) the Smardoncloud Products may be disabled by Smardoncloud 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 Smardoncloud’S policy is to automatically delete all of your Backed-up Data upon non-renewal, termination, or expiration of your subscription to the Smardoncloud Products and that it is solely your responsibility to seek another source for your backup needs.

Trial and Evaluation Licenses

You may try the Smardoncloud 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 Smardoncloud Products will automatically terminate upon the earlier of (i) the expiration or cancellation of the evaluation period, (ii) when the Smardoncloud Product is no longer made available, (iii) when Smardoncloud cancels your license to the Evaluation Version, or (iv) when your computer has not accessed the Smardoncloud server for more than thirty (30) calendar days. You acknowledge and agree that Smardoncloud’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

Smardoncloud Products. THE SMARDONCLOUD PRODUCTS MAY CONTAIN OR SMARDONCLOUD 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 SMARDONCLOUD 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. SMARDONCLOUD AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SMARDONCLOUD 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 SMARDONCLOUD PRODUCTS. SMARDONCLOUD DOES NOT WARRANT THAT THE SMARDONCLOUD PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SMARDONCLOUD PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SMARDONCLOUD 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 SMARDONCLOUD 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 SMARDONCLOUD SHALL CREATE ANY ADDITIONAL SMARDONCLOUD WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF SMARDONCLOUD‘S OBLIGATIONS HEREUNDER. YOU HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST SMARDONCLOUD AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF YOUR USE OF THE SMARDONCLOUD PRODUCTS, THIRD PARTY COMPONENTS AND BETA SOFTWARE. THE SMARDONCLOUD PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT SMARDONCLOUD 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. SMARDONCLOUD SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

Beta Applications

Smardoncloud may designate certain Enhancements and new releases of the Smardoncloud 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 Smardoncloud, 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 SMARDONCLOUD PRODUCTS. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD SMARDONCLOUD, 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 SMARDONCLOUD PRODUCTS, OR YOUR BACKED-UP DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SMARDONCLOUD 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 SMARDONCLOUD PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE, OR YOUR USE OF DATA OR FILES STORED THEREIN, EVEN IF SMARDONCLOUD 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 SMARDONCLOUD 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 SMARDONCLOUD IN THE 30 CALENDAR DAYS PRIOR TO THE DAMAGES ARISING. IF THE SMARDONCLOUD PRODUCTS ARE PROVIDED TO YOU WITHOUT CHARGE, THEN SMARDONCLOUD 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 SMARDONCLOUD 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 Ireland 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 Dublin, Ireland.

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 Dublin, Ireland. 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 Smardoncloud’s Privacy Policy, which you can access by clicking Privacy Policy for information and notices concerning Smardoncloud’s collection, use and security of your personal information.

Export

You shall not export, directly or indirectly, the Smardoncloud Products to any country for which the Ireland requires an export license or other governmental approval. You shall not use the Smardoncloud Products to store, backup, or distribute child pornography or other illegal files or data. You shall defend, indemnify and hold Smardoncloud 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 Smardoncloud Product was exported or otherwise shipped or transported by you in violation of applicable laws, rules and regulations.

Termination and Fair Use Policy

SMARDONCLOUD SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF SMARDONCLOUD PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY SMARDONCLOUD TO BE USING THE SMARDONCLOUD PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY SMARDONCLOUD OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH SMARDONCLOUD AND THE LICENSE TO USE THE SMARDONCLOUD PRODUCTS OR SERVICES. Smardoncloud Products or Services are designed to serve the needs of particular types of users, such as individual consumers or small businesses. If you have purchased a Smardoncloud Product or Service that is inappropriate for your actual usage, for example if Smardoncloud believes that you are using our service for business or commercial use, Smardoncloud will require you to switch to an appropriate Smardoncloud Product or Service. This may result in you having to pay Smardoncloud additional fees for use of the appropriate product or to terminate your purchased Smardoncloud Products or Services. For example: If Smardoncloud believes that you are using our home service for business or commercial use, Smardoncloud has the sole discretion to amend your service to our Business service which may require you paying additional fees or termination of your account. Smardoncloud determines business use as excessive backup of media files e.g. photos or videos in excess of 500GB. Smardoncloud may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of Smardoncloud Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of Smardoncloud Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Smardoncloud ‘s customers, generally. We monitor the usage of our heaviest Unlimited account users, a dynamic margin is calculated based upon averages which, should a user fall into, we may require them to cease backup or move onto a business account. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or Smardoncloud Product or Service that will permit you to continue to use Smardoncloud Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to use Smardoncloud Products or Services and any license to use the Smardoncloud Software, without prior notice in the event of a violation of this policy. If Smardoncloud believes that you are breached our Fair Use Policy and the user has not switched to a Business Service, Smardoncloud will allow the user 14 days from date of first communication to retrieve their data before deletion of the users account and data. 1st notice will be sent 14 days before account deletion and 2nd notice will be sent 2 days before account deletion. All communications will be sent to the email address attached to the users account. Smardoncloud has a zero tolerance policy and will immediately terminate accounts that violate the law in any way, including storing, publishing or sharing material that’s fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.

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 Smardoncloud 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 Smardoncloud 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, Smardoncloud may terminate your subscription to the Smardoncloud 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.

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