TERMS and CONDITIONS
(Effective as of September 2008)
Thank you for downloading and using Bup Backup. Bup Backup is a service for managing and sharing mobile phone data and is a service of Bodaro Technologies LLC (Doing Business As Bup Mobile) (the "Company").
Bodaro Technologies LLC makes every reasonable effort to keep your personal information and contacts safe and secure. Below is a summary of the terms and conditions for using the Bup Backup (also referred to as "Bup") service. Please review them carefully before accepting this agreement (the "Agreement"). Use of Bup Backup implies that you (the "User") have accepted this Agreement.
GRANT OF LICENSE FOR NON-COMMERCIAL USE
Subject to the terms of this Agreement, Bup Mobile grants to you, the User, a personal, non-exclusive, non-sublicensable and non-commercial limited license to install and use the Bup Backup software program (the "Software"), to access the Bup Backup service (the "Service") and related information, materials and documentation (the "Documentation").
Non-commercial means that you cannot charge other people to use the Software, Service nor may you charge them for work you do on their behalf if it involves use of the Software or Service. You further acknowledge and agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the Software or Service except as expressly provided in this Agreement. No license is granted to you by this Agreement in the human readable code, known as the source code, of the Software downloaded on your mobile device, and no rights are granted to you by this Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the Software downloaded on your mobile device. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Software or Service, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.
USE OF SERVICE
In order to use the Service, your mobile device must have access to the Internet to download the Software and use the Service. You are responsible for any and all fees associated with any such access of your mobile device to the Internet (including all mobile carrier fees). You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Company's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and Company shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. The Company hereby makes no guarantee or warranty as to the availability or accessibility of the Software or Service for an individual User's handset.
You must be at least 13 years of age to use this service and by using this service you agree that you are at least 13 years of age.
You may not rent, lease, subdivide, modify, translate or sublicense the Software or Documentation. You may only use the Software and Documentation in connection with Company's Service and not with any other backup or related service. You may not (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any of Licensor's source code, underlying ideas, algorithms, trade secrets or other proprietary information by any means whatsoever, (ii) create derivative works from or otherwise modify this Software or Service, or (iii) copy or otherwise reproduce the Documentation. You acknowledge and agree that you may not copy, distribute, sell, resell, transfer for value or exploit for any commercial purposes, any portion of the Software or Service.
The Software and Service is owned by Company and its structure, organization and code are the valuable trade secrets of Company and are protected by United States Copyright and other laws, international treaty provisions and applicable laws, including intellectual property, of the country in which it is being used.
The Software, Service and Documentation are licensed and not sold to you. Except as licensed in this Agreement, Company retains all right, title and interest in and to the Software, Service and Documentation worldwide.
ACCOUNT, MOBILE TELEPHONE NUMBER AND PIN
Your identification is based on your mobile telephone number and a self-selected personal identification number (the "PIN").
You agree that you are the owner or legal identity associated with the mobile telephone number on the device to which the Software is loaded.
You authorize us to process any and all account transactions initiated through the use of the Software and your PIN.
You are solely responsible for maintaining the confidentiality of your PIN and must immediately notify us of any unauthorized use of the Software and your PIN by electronic mail at firstname.lastname@example.org.
You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of the Software and your PIN. In no event will we be liable for the unauthorized use or misuse of the Software and/or PIN. You may change Your PIN at any time through the Account menu at http://www.bupmobile.com/account. Company may need to change telephone numbers allocated to certain of its Services and reserves the right to do so. You will be informed if this is necessary.
FREE TRIAL PERIOD
The Software and Service may be used free of charge for 15 days (the "Free Trial") from the time the Software is downloaded.
The free trial period is subject to change so check this web page for updates.
After the Free Trial, you will be automatically enrolled in the advertisement supported Service.
See the ADVERTISEMENT SUPPORTED SERVICE section for details on that Service.
If after the Free Trial you have not opted for the ad-supported version or purchased the version, all access to Software and Service, including your data as stored by Company, is terminated.
Once the Service is purchased and paid for you may use the Software and Service indefinitely or until the Software or Service is no longer offered or supported. Use of Software and Service is limited to those functions available in the Software and Service at the time Software was downloaded to your handset. Use of Software and Service is also limited to the ability of your handset to interoperate with the available functions of the Software and Service as described in the section titled USE OF SERVICE. Access to new Software and or Service functions may require purchase of the latest Service and download of the latest Software.
ADVERTISEMENT SUPPORTED SERVICE
Users may opt to participate in the advertisement based Service (the "Ad-Service") and in so doing may use the Software and Service as described in the section titled SERVICE FEES.
Participation in the Ad-Service means that you acknowledge and agree that we may rely on the Demographic Data and your mobile telephone number to send you a text (also known as a SMS) message (the "Message") to your handset for each use of any function of the Software or Service that originates from your handset.
You may upgrade to the non advertisement Service by purchasing the Service. You may stop the Message from being sent to your handset by stopping the use of all Software and Service functions. You may also stop the Message from being sent to your handset at any time by sending a text/SMS message to the number indicated on each Message (the "Opt-Out"). If you Opt-Out access to Software and Service, including your data as stored by Company will be terminated.
If you opt to provide demographic information, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the demographic registration form ("Demographic Data") and (ii) maintain and promptly update the Demographic Data to keep it true, accurate, current and complete.
If Company has reasonable grounds to suspect that the Demographic Data is untrue, inaccurate or incomplete, Company has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Demographic Data, including, but not limited to, your failure to receive critical information about the Service or your account. You further agree that we (ourselves or through third party service providers) are authorized to verify such Demographic Data.
REASONABLE USE OF CALLING FEATURES
Company has a "Reasonable Use" policy intended to ensure that our entire community of Users get a chance to use as many of the Bup Backup Service features as possible, including backup, restore and share. To achieve this goal, we ask Users to abide by the following "Reasonable Use Policy" when using Software and Service features. All Users:
- Must limit use to one User per handset; and
- Must never attempt to resell or redistribute the service in any way; and
- Must limit use of any function to a total of 24 uses per day (contact Company by electronic mail at email@example.com for terms if you wish to exceed this limit).
Member acknowledges that the Bup Backup Software and Service is reliant upon independent services provided by third-parties that are beyond Company's control.
The loss or interruption of any one of those independent services may prevent the Software and Service from operating at the physical location where, or by the devices with which, the Software and Service are used by a User.
In the event of any service interruption or outage, during which Software and Service may be temporarily unavailable, Users will continue to be billed for the Software and Service unless and until User or Company terminate the Software and Service in accordance with this Agreement.
Such independent service interruptions may include, but are not limited to: (1) Power outages; (2) Internet Service Provider outages; (3) Telecommunications service provider outages; (4) Outages due to User's account suspension; and (5) Outages due to User's failure to maintain the services used in conjunction with the Software and Service.
Company reserves the right at any time and from time to time to modify the Service, or portions thereof, with or without notice to you.
With notice to you, Company reserves the right at any time and from time to time to suspend, discontinue or permanently cancel the Service, or portions thereof.
- Your contacts are always safe and secure because Bup Backup is a signed application. This means it has to be certified by your carrier, so you know it's safe and trusted. Bodaro Technologies LLC (D.B.A. "Bup Mobile") is the company responsible for the application downloaded to your mobile phone. Bup Backup has no spyware or viruses.
- We encrypt your personal contacts and PIN, both on our server and during Internet transmissions.
- Use Bup Backup right from your phone to email your contacts to yourself.
- We will not sell your personal information or phone number.
- You will be sent one text message advertisement each time you backup, restore or share your contacts from your mobile phone or anytime you download, upload or email contacts between the Bup Mobile website (www.bupmobile.com) and your personal computer.
- The ad can be easily deleted from your phone.
- Our ad network requires us to ask simple demographic information (date of birth, zip code and income). This information will be revealed only to us and our ad network.
- To send you relevant ads, you will be asked to choose topics of interest.
- To download the application, Bup Mobile will send a URL to your phone. The text message contains an embedded URL which is used to download Bup Backup from the Internet.
- When another user shares contact information with you, Bup Mobile will send you a text message to notify you that an update of your contact data is pending.
- If you are using the advertising supported version of the Bup Backup service a text message will be sent each time you use Bup from your mobile handset.
- If you are using the advertising supported version of the Bup Backup service a text message will be sent each time you upload, download or email your contacts or other data between the Bup Mobile website and your personal computer.
We take your trust in us seriously. Company will use all reasonable efforts to prevent the unauthorized disclosure of your confidential information and data.
Company, however, will not be responsible for any matter beyond its reasonable control, including, without limitation, unauthorized electronic access of your confidential information or data.
In the event that Company is served a subpoena or is otherwise legally compelled to provide access to your data, Company will provide you with notice of the same as soon as practical to enable you to take action you deem necessary to prevent any such access.
LINKS TO THIRD-PARTY SITES
The Software and Service may present links to retailers and/or other third-party websites not owned or operated by Company. These links are provided only as a convenience to you. These link may enable you to access or purchase products and services. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that Company shall not be a party to, or in any way responsible for, any transaction concerning products or services made available from such third parties or for any content or information presented in connection with any products or services of third parties. Neither Company nor its partners, agents, affiliates, etc. are responsible for the availability of these outside sites or their contents. You understand and agree that neither Company nor its partners, agents, affiliates, etc. are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.
TERMINATION OF THE LICENSE AGREEMENT
You may terminate this Agreement at any time and without cause, and Company might choose to but shall not be obligated to refund any monies paid.
You agree that Company, at its sole discretion, may at any time terminate your use of the Software and Service and/or change its functionality offering made available through the Software and Service, if Company believes that you have violated or acted inconsistently with this Agreement.
The term "Data" refers to your phone contacts that are stored away from your phone by Company under the terms of this license agreement as well as all related information and files related to your account. You agree that upon termination of your access to the Software and Service under any provision of this Agreement, Company may immediately deactivate or delete your account and all Data and/or bar any further access to Software, Service or Data except as provided in the section titled DISPOSITION OF DATA ON TERMINATION.
Further, you agree that Company shall not be liable to you or any third party for any termination of use of Software, Service or Data. If you cancel or stop your Ad-Service for any reason, Company may immediately deactivate or delete your account and all Data and/or bar any further access to Software, Service or Data except as provided in the section titled DISPOSITION OF DATA ON TERMINATION.
DISPOSITION OF DATA ON TERMINATION
For the ad-supported version of Bup Backup, data is retained for no more than a 90 day period from the date of your last transfer. If no transfer is performed within 90 days, all data will be automatically purged from Company's systems and will not be recoverable. Company will only store the 2 most current backups of your Data. Data transferred during backup sessions previous to the most current 2 will be automatically purged from Company's systems and will not recoverable. The services provided to You by Company may be terminated under the Section titled TERMINATION OF THE LICENSE AGREEMENT above. Company has no obligation to delete users Data after termination but may do so immediately. After termination, User has ability to delete their Data by accessing Service online at http://www.bupmobile.com/account and suppling their valid mobile telephone number and PIN. This functionality to delete Data is available for at most 90 days after termination.
CONTROLLING LAW AND SEVERABILITY
This Agreement shall be governed by the laws of the United States and the State of California without regard to conflicts of laws provisions thereof. If any provision of this Agreement, or portion thereof, is held to be unenforceable, the remainder of this Agreement shall continue in full force and effect.
IN THE EVENT THIS LIMITATION OF DAMAGES IS HELD UNENFORCEABLE, THAT BY REASON OF THE DIFFICULTY IN FORESEEING POSSIBLE DAMAGES, THE AGGREGATE LIABILITY OF BUP BACKUP WILL NOT EXCEED THE SUM OF ONE HUNDRED DOLLARS ($100) AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
NO OTHER WARRANTIES EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE, SERVICE AND DOCUMENTATION ARE PROVIDED "AS IS." COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THIS LIMITATION MAY NOT APPLY TO YOU.
The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. No provision of this Agreement shall be deemed waived unless such waiver shall be in writing and signed by Company or a duly authorized representative of Company. You may not assign the benefits of this Agreement to any other party.
IN NO EVENT, INCLUDING NEGLIGENCE, SHALL COMPANY, AND ITS SUPPLIERS, BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) OR ANY OTHER DAMAGES OR LOSSES ARISING OUT OF THE USE OF OR INABILITY TO USE THIS PRODUCT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE AND UNDERSTAND THAT IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY TO YOU EXCEED THE LIST PRICE COMPANY CHARGES YOU FOR A LICENSE TO THE SOFTWARE AND SERVICE EVEN IF COMPANY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Company shall not be liable for nonperformance, delay, errors, data loss or other loss caused by any event reasonably beyond Company's control including, but not limited to acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, non-use of product, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.
You agree to indemnify Company and its parents, subsidiaries, affiliates, partner sites, officers and employees against any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of Bup Backup, the violation of these Terms by you, or the infringement by you, or any other user of your account, of any intellectual property or other right of any person or entity.
Bup Backup reserves the right, in our sole discretion, to control any indemnification action or proceeding and determine the terms of any settlement we may choose to enter.
MEDIATION AND ARBITRATION
Any controversy or claim arising out of or relating to these Terms shall be submitted to mediation in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If this program is unavailable at the time of dispute, within 30 days, Company will select another neutral mediation service providing mediators with at least ten years of experience in dispute resolution.
If mediation is not successful in resolving all disputes arising out of these Terms, those unresolved disputes shall be submitted to final and binding arbitration. The arbitrator shall be selected in accordance with the rules of Arts Arbitration and Mediation Services, a program of California Lawyers for the Arts. If such services are not available, the dispute shall be submitted to arbitration in accordance with the laws of the state of California. The arbitration award shall be final and judgment may be entered upon it by any court having jurisdiction thereof.
However, Company has the right to seek injunctive or other equitable relief in state or federal court location in San Francisco, CA to enforce these terms or prevent an infringement of a third party's rights. In the event equitable relief is sought, each party irrevocably submits to the personal jurisdiction of the court.
This Agreement constitutes the entire Agreement between the parties with respect to the Software, Service and Documentation and supersedes all prior or contemporaneous understandings regarding this subject matter.
Company may change these terms at any time.
You must check this website regularly for minor updates to this Agreement. However, we will email customers with any material changes to this agreement. Thank you.
CUSTOMER CONTACT INFORMATION
You may contact Bup Mobile Customer Support in writing by electronic-mail at firstname.lastname@example.org, or by U.S. Mail to Bodaro Technologies LLC, 685 Victoria St. San Francisco, CA 94127 USA.