BACKUP365 STANDARD TERMS & CONDITIONS
Backup365, and Customer (as identified on the Services Application Form) agree to the following Backup365, Standard Terms and Conditions, as may be supplemented by any additional terms attached hereto (the “Terms and Conditions”). The Services Application Form (“Order Form”) executed by Customer and these Terms and Conditions are collectively referred to as the “Agreement”.
1. DEFINITIONS. For purposes of the Agreement, the following definitions shall apply: (a)
2. DESCRIPTION OF SERVICES. Backup365 will provide Customer the services designated in the Order Form (the “Services”). Backup365 may change, update or enhance the Services from time to time as it deems necessary. For Services designated as in Beta stage, Backup365 reserves the right to materially change the functionality of the Services without notice to Customer.
3. CUSTOMER OBLIGATIONS. Customer will provide Backup365 with all technical data and all other relevant information and assistance Backup365 reasonably requires to supply the Services. To the best of Customer’s knowledge, all information supplied to Backup365 will be complete, accurate and provided in good faith.
Customer agrees not to: (i) use the Services for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity, or use the Services in the event Customer provides similar services; (ii) modify, decompile, reverse engineer, disassemble or reproduce any components of the Services (iii) interfere with or disrupt the Services or any networks connected to Services; (iv) conduct fraudulent activities, including the initiation or propagation of any Malware; (v) take an unreasonable or disproportionately large load (traffic bandwidth or data storage per user exceeding 150% of the average for all Backup365 customers using similar services) on Backup365 infrastructure providing the Services, unless the parties agree an overage charge rate as set forth in a Service Application Form; (vi) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity; (vii) allow the resell the Services, or otherwise permit the use of the Services by any third party users that are not bound by these Terms and Conditions (each of (i) to (vii), a “Prohibited Use”).
At Backup365’s reasonable request, Customer shall provide to Backup365 comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Services (collectively, the “Feedback”). The Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the results of any and all benchmark or similar testing conducted within the term of this Agreement. In addition, Customer shall report to Backup365 any unusual, unplanned or out-of-the-ordinary performance of the Services observed by any of Customer’s personnel. Customer agrees that Backup365 has the unrestricted right to use the Feedback at its sole discretion, without notice to, payment to or consent from Customer, provided that Backup365’s use of the Feedback complies with the nondisclosure obligations set forth in Section 11 below. Customer agrees not to disclose Feedback to any third party without the express written consent of Backup365.
4. SYSTEM ADMINISTRATOR. The customer will provide Backup365 with technical contact information regarding Customer’s system administrator (“System Administrator”) who Customer hereby authorises and directs to act on its behalf and provide the information required by Backup365 to configure and manage the Services.
5. TERM. The initial term of this Agreement is specified in the Order Form (the “Initial Term”). This Agreement shall renew for successive terms of equal length as the Initial Term (each a “Renewal Term”) unless either party provides written notice of its intent not to renew this Agreement at least five (5) days prior to the end of the then current term. During any Renewal Term, the parties shall be bound by the provisions of these Terms and Conditions in the form published on Backup365’s website www.backup365.io/terms/ as of the effective date of the Renewal Term. Customer acknowledges and agrees that billing for the Services shall continue through the effective date of the termination, subject to the notice requirement and other applicable terms herein.
6. FEES; INVOICE; AUDIT. Customer will pay the Fees set forth on the Order Form, which are subject to change based on Customer’s request for an increased number of users served or other options ordered by Customer, or at the discretion of Backup365 at the beginning of any Renewal Term. Customer is responsible for the payment of any and all taxes related to use of the Services (excluding taxes based on Backup365’s income). If the Customer cancels the Services during the Initial Term or any Renewal Term they will not be entitled to a refund.
7. SUSPENSION OF SERVICE. Backup365 may suspend the Services as follows: a) immediately if Backup365 deems it necessary to terminate any Prohibited Use either directed at or originating from Customer’s domains or servers; or b) upon written notice to Customer if Customer breaches this Agreement and fails to cure such breach to Backup365’s satisfaction within five (5) days after Backup365’s written notice specifying the breach. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including but not limited to Customer’s obligation to pay Fees.
8. TERMINATION. Backup365 may terminate this Agreement for cause immediately upon email notice to Customer: (a) in the event that Backup365 does not receive Customer’s payment of any non-disputed Fees within thirty (30) days of the invoice date, (b) Customer fails to remedy any situation giving rise to a Suspension of Service; (c) Customer commits a material breach of this Agreement; or (d) Backup365 makes a reasonable determination that Customer’s traffic volume is disproportionately large. In the event of (d) above, Backup365 may request that Customer enter negotiations regarding a Fee adjustment as a prerequisite to continuing Services. Within thirty (30) calendar days after termination or expiration of this Agreement, the Customer will: (a) return to Backup365 all materials provided to the Customer by Backup365 under this Agreement; and (b) certify in writing through an authorised representative of Customer that such return has been effected.
9. CUSTOMER SERVICE. The Order Form specifies the party that will provide Customer technical support, which may be Backup365 or a Backup365 partner (“Channel Partner”), in which case Customer agrees that it will seek technical support exclusively from Channel Partner. Terms of customer support provided by Backup365 are available on Backup365’s web site (https://www.backup365.io/support/). Backup365 may from time to time perform maintenance on or otherwise temporarily suspend the Services. Backup365 will use commercially reasonable efforts to minimise any disruption of Services. 10. SECURITY. Although information transmitted to Backup365 is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed to be 100% secure. Backup365 is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
10. SECURITY. Although information transmitted to Backup365 is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed to be 100% secure. Backup365 is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
11. CONFIDENTIALITY; PRIVACY. Each party agrees and undertakes that during the term of this Agreement and for three (3) years thereafter, it will keep confidential and will not use for its own purposes without the prior written consent of the disclosing party any information of a confidential nature which may become known to the receiving party from the disclosing party (“Confidential Information”) unless: (i) such disclosure is otherwise permitted or contemplated by this Agreement; (ii) the information is publicly known or already known to the receiving party at the time of disclosure; (iii) the information subsequently comes lawfully into the possession of the receiving party from a third party; or (iv) disclosure is required by court order or otherwise by law. Customer acknowledges that Backup365’s Intellectual Property (defined below) constitutes Confidential Information of Backup365.
In Backup365’s normal provision of the Services, Customer’s traffic is processed electronically, and is not reviewed by Backup365’s personnel. Backup365 recognises that user specific information and the content of the traffic sent to or from Customer constitutes Confidential Information of the Customer. Backup365 will not sell, rent, license or exchange personally identifiable data with a third party without the Customer’s consent unless required to do so by law or to enforce this Agreement. Notwithstanding the foregoing, Backup365 reserves the right to utilise any content of the traffic to maintain or improve the performance of the Services, or to observe, study and test the functioning of the Services. In addition, some information may be shared on an aggregate basis only as a part of a larger set of statistics (for example, statistics that indicate amount of traffic, success rates, and size of Backup365’s customers). Backup365 may use cookies to store user session information, access codes, and application settings to ease site navigation processes. Cookies do not hold any personal information.
12. INTELLECTUAL PROPERTY. The Services (including any associated software, hardware, websites, passwords, components and tools) are and will remain the sole property of Backup365 or its licensors, respectively. Backup365 or its licensors, respectively, will retain sole ownership of all right, title and interest in and to the Services, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights (“Intellectual Property”). Customer agrees, on behalf of itself, its employees and agents, that it will not remove or alter any trademarks, or other proprietary notices, legends, symbols, or labels appearing in the Service or other materials delivered by Backup365.
13. THIRD PARTIES. The Services may contain products of independent third parties, such as Malware definitions or algorithms.
14. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY. ANY USE BY YOU OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND BACKUP365 AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, BACKUP365’S OR ITS LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL BACKUP365 OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE, DATA, WEB TRAFFIC, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER WEB TRAFFIC OR EMAIL, DELAYS OR FAILURE TO DETECT UNDESIRABLE WEB TRAFFIC OR MALWARE, OR WRONGFULLY IDENTIFYING WEB TRAFFIC OR EMAIL FOR FILTERING OR AS CONTAINING MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF BACKUP365 HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NEITHER BACKUP365 NOR ITS LICENSORS WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
15. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold Backup365 harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) any breach by Customer of this Agreement; (ii) any information or content passing through the Services and/or Backup365’s network to or from Customer; (iii) any taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on Backup365’s income); and (iv) claims by third-parties arising from Customer’s use of the Services (excluding claims that the Services, as provided by Backup365, infringe third party intellectual property rights).
Backup365 agrees to indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) arising out of third party claims that Customer’s authorised use of the Services, as provided by Backup365, infringes the intellectual property rights of such third party. In the event that a claim of infringement is made or threatened, Backup365 may: (i) modify the Services to render them non-infringing; (ii) secure for Customer the right to use the Services; or (iii) terminate this Agreement. The foregoing states the entire liability of Backup365 with respect to infringement.
16. WAIVER. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
17. JURISDICTION/GOVERNING LAW; COSTS; LIMITATION PERIOD. The laws of the State of Victoria, Australia shall govern this Agreement and any interpretations or constructions thereof. Further, the place of performance and transaction of business shall be deemed to be in the state of Victoria, Australia in the event of litigation, the exclusive venue and place of jurisdiction shall be the state courts of Victoria, Australia or federal courts of Australia, as applicable. The parties hereby submit themselves to the personal jurisdiction and venue of such courts.
In any dispute regarding the enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and fees, including attorneys’ fees, incurred by such prevailing party in enforcing the terms of this Agreement.
Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of this Agreement must be filed within one (1) year after such claim or cause of action arises.
18. NOTICE. Any notice required in this Agreement shall be delivered by facsimile or registered mail sent to the addresses set forth on the service application Form. Notices shall be deemed effective upon receipt.
19. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Customer may not assign this Agreement without the prior written permission of Backup365.
20. SURVIVAL. Rights and obligations which by their nature should survive will survive the termination or expiration of this Agreement, including but not limited to Sections 1, 6, 8, 11-19 and 20.