Mac Backups Software Terms of Use

This Online Backup Agreement made between Synectics Business Solutions, Inc., a corporation incorporated under the laws of the province of Ontario (hereinafter referred to as "Synectics") and the Customer ("Customer") who has proceeded with downloading the Mac Backup™ software.

Whereas Synectics owns and provides an online backup service for Macintosh computer hardware through proprietary software on the World Wide Web known as Mac Backup™ and whereas the Customer desires to use Mac Backup on the terms and conditions as set out herein -

ARTICLE 1 - Interpretation
1.1 This Agreement is made pursuant to and shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract. The Customer agrees that any action commenced under this Agreement may only be commenced in the Courts of the Province of Ontario and the Customer agrees to attorn to the jurisdiction of such Courts.

1.2 This Agreement does not and shall not be construed to create any partnership, joint venture or agency whatsoever.

1.3 This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof.

1.4 As used herein the following terms shall have the meanings set out below unless otherwise indicated:

"Mac Backup" means software and documentation, together with all updates, enhancements, modifications and fixes thereto, which are owned by Synectics and made generally available to the Customers in connection with use and performance of the Service;

"Internet" means the world-wide network of computers commonly understood to provide some or all of the following features, among others: electronic mail, file transfers through File Transfer Protocol ("FTP"), UseNet Newsgroups and World Wide Web access;

"Pricing Information" means all pricing information provided to the Customer as a part of the Registration process or otherwise provided by notice to the Customer via Synectics Web Site at www.Mac Backup.com

"Registration" means the registration process for the Service whereby a Customer subscribes for the Service and provides their name, address, credit card information, etc., subject to Synectics' approval;

"Service" means the services as described in Article 2 hereof;

"Software" means Mac Backup and the Third Party Software;

"Third Party Software" means software and documentation, together with all updates, enhancements, modifications, and fixes thereto, which are owned by third parties and made generally available from time to time by Synectics under sublicense to the Customer in connection with the Service;

"Web Server" or "Server" means the computers that Synectics uses to provide the Service hereunder;

ARTICLE 2 - Backup Service
2.1 Synectics agrees to provide a backup service for the Customer's data, utilizing the Internet and their own proprietary software, on the terms and condition as set out herein.

2.2 Synectics hereby grants to the Customer a non-exclusive, non-transferrable, limited license to use:

(a) the object code version of Mac Backup , under the terms and conditions set forth in this Agreement on personal computers for which the Customer controls access to Mac Backup, solely and exclusively to the extent necessary to enable the Customer to access and use the Service; and

(b) the object code version of Third Party Software solely and exclusively in connection with the Customer's use of the Service, and subject in all events to all terms, conditions and limitations on use concerning such Third Party Software, of which the Customer is notified from time to time.

2.3 Synectics agrees to allow the Customer to backup and retrieve data via the Internet seven (7) days per week twenty-four (24) hours per day. Notwithstanding the foregoing, Synectics reserves the right to perform scheduled maintenance of Synectics' Server from 1:00 pm to 2:00 pm EST from Monday - Saturday as well as Sunday mornings between 7 am and 2pm EST.

2.4 The Mac Backup software automatically compresses and encrypts (using 128 bit CAST encryption algorithm) the customer's data which is accomplished prior to sending its files to the Mac Backup storage system.

2.5 Synectics will use its best efforts to support the creation of offsite archives. Synectics assumes no responsibility for Customers who delete information from their computer prior to ensuring the backed up files made it successfully to our servers. It is the full responsibility of the Customer to ensure their files are properly stored with us by performing a complete recovery of the information in question prior to a deletion of the original information on their computer. To recover storage space, the Customer will be able to select unneeded files for deletion from the Server, and such deletions will have no affect on the files stored on the Customer's computer. If more than one version of a file has been backed-up, Mac Backup will allow the Customer to retrieve one or more versions to store them on the Customer's computer.

2.6 Synectics reserves the right to change the features of the Service from time to time at its sole discretion upon thirty (30) days notice in writing of such change to the Customer. Unless the Customer indicates in writing within ten (10) days of receipt of such notice that it wishes to terminate this Agreement, the Customer shall be deemed to have accepted the changes as set out in such notice.

ARTICLE 3 - Payment and Invoicing
3.1 Charges

When signing up for the service, the Customer selects a pricing plan from the Mac Backup website - the Customer agrees to pay the relevant charges with respect to the plan chosen. Synectics may, upon thirty (30) days notice in writing to the Customer change the fees charged.

3.2 Payment

Upon Registration, the Customer agrees to provide Synectics with a valid credit card number and expiration date. The customer is immediately charged the relevant fee based on the plan they selected.

On a monthly basis (based on the date of registration), Synectics shall process all charges to the Customer pursuant to this Agreement to such credit card. The Customer remains at all times fully liable to pay all charges set out herein in the event that such amounts have not been paid by the Customer's credit card company. The Customer agrees to provide Synectics from time to time with all necessary updated credit card information in the event that any credit card company should cease to honour the Customer's credit card account.

3.3 Non-payment

If a credit card is declined when Synectics attempts to process a customer's monthly invoice, Synectics will provide a grace period of 5 days before the account is suspended. The Customer will be notified of the decline immediately and asked to provide updated information or details regarding when the charge can be processed. Once the credit card transaction has been successfully processed, the account will be reactivated and the customer informed. The Customer is responsible for ongoing storage costs that will be incurred during the suspended period of their account. If the credit card transaction has not been successfully processed 15 days from the date of suspension, Synectics has the right to terminate the Customer's account

Customers who have been given prior authorization by Synectics to pay by cheque have 15 days from the date of the invoice to get payment to our location. If payment has not been received by that time, Synectics will suspend the account and restrict further access unless prior written arrangements have been made between Synectics and the Customer to continue to provide access until payment is made. The Customer is responsible for ongoing storage costs that will be incurred during the suspended period of their account. If payment via cheque has not been received 15 days from the date of suspension, Synectics has the right to terminate the Customer's account

3.4 Collection Costs

The Customer hereby agrees to pay any and all legal fees, court costs, and related expenses incurred by Synectics in the collection of any amount due to it.

3.5 Customer Information

For purposes of identification, billing and marketing, the Customer shall, upon Registration, provide Synectics with accurate, complete, and updated information including the Customer's legal name, address, telephone number(s), and applicable payment data including credit card number and expiration date. The Customer agrees to notify Synectics within thirty (30) days of any changes in this information.

ARTICLE 4 - Software License
4.1 Grant of License

Synectics hereby grants to the Customer a non-exclusive, license for the Software for its own use only on the terms and conditions set out herein.

4.2 Limitation

For greater certainty, it is acknowledged by the Customer that the license granted hereby is solely for the Customer's own use and does not give the Customer any rights to sell or license the Software to any arm's length third party users.

4.3 Conditions

The Customer agrees that it may use the Software on multiple machines and, if the Customer chooses to do so, will be charged for each additional computer ID that falls within their Account ID.

ARTICLE 5 - Customer's Duties and Rights
5.1 Encryption Key

During the Easy Setup process, the customer will generate an encryption key that is unique to each user upon the initial use of the Mac Backup Service. This key will provide confidentiality to the Customer's data and safeguard the information while in transmission to the Servers. The Customer agrees to write down and store offsite the passphrase that was used to create the encryption key. If the Advanced method of encryption has been used, the customer also agrees to create multiple backup copies of the encrypt.key document and store it in a safe offsite location such as a safety deposit box. The Customer acknowledges that if they should lose or misplace the passphrase (Standard method) or the passphrase and Encrypt.key document (Advanced method), it will be impossible for Synectics to regenerate the encryption key and the Customer will not be able to retrieve any files backed up with such key. The Customer agrees that Synectics will not be responsible or be held liable for any loss of data arising from the failure by the Customer to perform the above requirements.

5.2 Customer Responsibilities

The Customer must be at least 18 years of age and must enroll for the Service under its own name. The Customer must promptly inform Synectics if there is any change in information provided at Registration, including, without limitation, change of address and any credit card numbers and expiration dates. If the Customer has reason to believe that its account is no longer secure, it should promptly inform Synectics of the problem to avoid possible liability for any fraudulent charges to its account. Until Synectics is so notified, the Customer will remain responsible for any unauthorized use of the Service occurring on the Customer's account.

5.3 Account ID Number

When the Customer initially registers for the Service, the Customer will be assigned an account identification number ("ID"). Once the Customer has been issued an ID, the Customer's computer equipment must be configured to use that ID in order to access the Service from the Customer's computer equipment. In order to prevent unauthorized access to the Service, the Customer's account will only be accessible through the use of the ID. The Customer acknowledges that anyone who has unprotected access to the Customer's computer will be able to use the Customer's account freely. The Customer agrees to secure its computer equipment and access to its software so that only authorized users can gain access to the Customer's account.

5.4 Use of Account ID Number

The Customer shall not transmit any content under a false name or ID. The Customer shall not permit any other person (other than an agent acting on the Customer's behalf and subject to the Customer's supervision) to access the Service using the Customer's account for any purpose.

5.5 Place of Residence
Under the Canadian government's General Export Permit No. 39, Synectics is prohibited from allowing customers from the following countries to use the Mac Backup service: Iran, Iraq, North Korea, Angola, Myanmar and the Republic of Yugoslavia. The customer acknowledges that to use the service if you are a resident of one of these countries is in violation of Canadian law. The Customer agrees to notify Synectics should they change their place of residence to one of these prohibited countries and to immediately stop using the service.

ARTICLE 6 - Term & Termination
6.1 Effective Date

This Agreement will become effective at the earlier of date of the accepting of this Agreement, or the activation of the Service by Synectics for the Customer.

6.2 Termination

Synectics reserves the right at its sole discretion to cancel the Customer's account, at any time, without notice, for any reasons Synectics considers appropriate. Synectics may without notice terminate this Agreement if:

(i) The Customer fails to make any required payments due under this Agreement;
(ii) The Customer violates the provisions of Clause 4.2, 5.4 or 5.5 above;

6.3 Notification of Cancellation

Cancellation of Service can be performed via phone or email by the Customer to Synectics. Inactivity on a Customer's account does not constitute or imply cancellation of the service and the Customer is responsible for all charges incurred on their account until official cancellation of the account with Synectics.

Upon receipt of a cancellation notice, Synectics shall contact the customer via email or phone and subsequently calculate the appropriate charges or credits to the account based on the cancellation date. Synectics shall delete the Customer's data from its Server upon verbal approval from Customer or, if unable to contact the Customer, within 30 days from date of cancellation.

6.4 Synectics' Cancellation

Synectics will provide the Customer thirty (30) calendar days notice of its intention to cancel the Customer's account, if Synectics determines that cancellation is necessary for reasons beyond the Customer's control or that of Synectics, as long as the Customer is in good standing with the terms and conditions outlined in this Agreement. Upon receipt of such notice, the Customer shall arrange to recover any of its data on Synectics' Server by the effective date of cancellation. On the effective date of cancellation Synectics shall delete the Customer's data from its Server and shall bill the Customer for all charges incurred to the date of termination.

6.4 30-day Money Back Guarantee

Synectics will provide each Customer with a 30-day full money back guarantee. If the Customer is dissatisfied with the service for any reason within the first 30 days (30 days from the official subscription date), the full fees initially paid to Synectics will be refunded completely. If the Customer paid via credit card, their card will be credited the amount. If the Customer paid via check, the refund will be payable via check.

ARTICLE 7 - Warranty Limitation and Indemnity
7.1 Warranty

No warranties are provided by Synectics hereunder except as explicitly expressed in this Agreement. The Service is provided on an "as is, as available" basis. Except as expressly set forth in this Agreement, Synectics does not make any representations or warranties, express or implied, regarding the Mac Backup Service, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance.

7.2 Disclaimer

The Customer agrees to use the Service and facilities at the Customer's own risk. Synectics specifically disclaims all warranties of merchantability and fitness for a particular purpose. In no event shall Synectics be liable for any loss, or loss of data, or any other damages.

7.3 Limitation on Liability

Under no circumstances, including gross negligence by Synectics or any of its servants, agents or employees, shall Synectics or anyone else involved in administering or distributing the Service be liable for any direct, indirect, incidental, special, consequential or exemplary damages (even if Synectics has been advised of the possibility of such damages) that result from the use of or inability to use the Service including but not limited to loss of revenue or lost profits, or losses that result from mistakes, omissions, interruptions, deletion of files or e-mail, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction, or unauthorized access to Synectics's records, programs, or services. Notwithstanding the foregoing, and for greater certainty, in no event shall Synectics be liable to the Customer for more than the aggregate amounts paid to Synectics under this Agreement. Synectics does not assume any responsibility or liability for the accuracy of any information that may be contained in any manner, be it Web Pages, program or data files, images or any other information stored by the Customer, even if Synectics is maintaining said information.
It is the sole and legal responsibility of the Customer to ensure that all information or data stored on its site, is accurate and legal. The Customer agrees to hold Synectics harmless for any and all activities that may take place due to the Customer's storage of information, and will not assume responsibility for libellous, misleading, wrongful, illegal or immoral information in any form including postings, images, program files, data files, transmissions of any kind, including verbal, written or electronic, claims or content that may offend or be illegal in nature, regardless of geographic location of the content recipient.

7.4 Indemnity

The Customer agrees to defend, indemnify and hold harmless Synectics, its officers, directors, employees, agents and licensees, from any claims and expenses, including legal fees, on a solicitor and his own client basis, arising out of or relating to the Customer's use of the Service. Synectics hereby explicitly advises the Customer that the Internet is a public medium and any content posted thereon is subject to all laws of defamation. The Customer agrees to protect and indemnify Synectics against any and all liability, loss, or expense arising from claims of libel, unfair competition, trademarks, trade name or patent violations, violations of rights and privacy and infringement of copyrights and property resulting from the Customer's use of Synectics hosting services.

ARTICLE 8 - Internet Limitations
8.1 Internet Connectivity

Synectics and the Customer both acknowledge that the Internet is not owned, controlled, or the responsibility of Synectics, and that Synectics cannot guarantee that their Web Site, data, files, or information will be available at all times. Synectics agrees to act responsibly and promptly to provide the Service to meet the needs of the Customer. Synectics will never know the Customer's encryption key; therefore, access to a Customer's data is never possible.

ARTICLE 9 - Arbitration
9.1 In the event that any dispute shall occur between the parties hereto which cannot be resolved by the provisions hereof, or by agreement of the parties, the determination of such dispute shall be arrived at by arbitration. Such dispute shall be determined by a single arbitrator if the parties can agree upon one. If the parties cannot agree upon a single arbitrator, any party may apply to a Judge of the Ontario Court of Justice, General Division in the province of Ontario for the appointment of an arbitrator. Such Judge shall appoint a single arbitrator, or shall be entitled to act as an arbitrator himself if he so desires. The arbitration shall proceed in accordance with the provisions of the Arbitrations Act, Ontario. The decision arrived at by the Board of Arbitration, howsoever constituted, shall be final and binding and no appeal shall lie therefrom.

ARTICLE 10 - General Contract Terms
10.1 All notices, requests, demands or other communications required or desired to be given under this Agreement by one party to another shall be given in writing by personal delivery, by registered mail, postage prepaid, or by facsimile (with confirmation of transmission) as follows:

TO: Synectics Business Solutions Inc., 105 Valley Crescent, R.R. #4, Markdale, Ontario, N0C 1H0 - Fax: (519) 986-4382

10.2 This Agreement constitutes the entire Agreement between the parties hereto with respect to the matters described herein and this Agreement shall not be amended except by a memorandum in writing signed by all of the parties hereto and any amendment hereof shall be null and void and shall not be binding upon any party which has not given its consent as aforesaid.


10.3 This Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their permitted assigns.