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Backup Products and Services Terms

These terms (Backup Products and Services Terms) apply if we provide Backup Products and Services to you, in addition to Entity's standard Terms and Conditions (Standard Terms), which also apply to the Backup Products and Services provided by Entity. To the extent of any inconsistency between these Backup Products and Services Terms and the standard Entity Terms and Conditions, these Backup Products and Services Terms will prevail.

Please read these Backup Products and Services Terms carefully. By clicking “I agree”, by executing an order form that references these terms, or by installing, accessing or using any backup relevant product you acknowledge you have read, understand and agree to these Backup Products and Services Terms, including applicable policies referenced throughout. If you accept on behalf of a business or other legal entity, you represent and warrant that you have the legal authority to bind that legal entity to these Backup Products and Services Terms and "You" will refer to that legal entity and its affiliates.

If You accept these Backup Products and Services Terms solely as a third party relevant product Administrator (not as a direct Customer) managing or using any relevant product on behalf of a Customer, You represent and warrant that You are acting as an agent of the Customer and You have the full authority to agree to these Backup Products and Services Terms with respect to access, use and support of the relevant product and associated backed up data. You agree to obtain the Customer’s authorisation and comply with the customer’s instructions at all times with respect to the use of the relevant product and access to and management of backed up data, the transition of the relevant product or backed up data to a different administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among an administrator, customer and us.

If You do not agree to these Backup Products and Services Terms, You may not use the relevant product.

  1. Orders
    1. These Backup Products and Services Terms are incorporated into each Order for the relevant product. Unless otherwise specified in an Order or pursuant to Section 3.3, the customer will receive the standard relevant product features and functionality (such as frequency of automated backups) described in the current Specifications and Policies for the relevant product, for the number of Users and/or data allotment specified in an Order.
  2. Free Trial
    1. If the relevant product is being used during a free trial, these Backup Products and Services Terms (except for payment obligations) will apply for the purpose and term of such authorised evaluation or trial period only. We reserve the right to terminate any such evaluation use of the relevant product at any time at our sole discretion. Any backed-up data saved during a free trial will be permanently deleted following the trial period unless a paid order is placed for the same relevant product. Customer may export backed-up data prior to the end of the trial.
    2. Notwithstanding any other provision of these Backup Products and Services Terms, all relevant free trial use of a relevant product is provided "As-is" and "As available," without warranties of any kind. You hereby waive all claims, now known or later discovered, against us arising out of the use of any relevant product for a free trial.
  3. Use of relevant products
    1. Subject to these Backup Products and Services Terms and receipt by us of all fees applicable to the relevant product, we hereby grant a limited, revocable, non-sublicensable, non-exclusive right to access and use the relevant product during the Subscription Term for the number of Users and /or the applicable data storage allotment set forth in an Order. Customer may use the relevant product solely for internal business purposes and not for further resale or distribution.
    2. Each relevant product is licensed, not sold. The relevant product contains material that is protected by copyright, patent and trade secret law of jurisdictions throughout the world, and by international treaty provisions. Except for the limited rights granted in these Backup Products and Services Terms we and our licensors retain all right, title, interest and Intellectual Property Rights in the relevant product.
    3. We reserve the right at any time to make Enhancements to, replace, modify, discontinue or add to the relevant products, including revisions to Specifications, functionality, and features such as storage and retention. We will use reasonable commercial efforts to provide You notice of any material changes by email or by updating relevant information in the applicable Online Portal.
    4. We may designate enhancements to a relevant product or a new relevant product as "Beta Product" that we may make available at no charge. Such Beta Product will not be ready for use in a relevant production environment and its operation may be unpredictable and lead to erroneous results. You are under no obligation to use a Beta Product. If You choose to use a Beta Product, You agree the Beta Product
      1. is experimental and has not been fully tested;
      2. may not meet Your requirements;
      3. use or operation may not be uninterrupted or error-free and is for purposes of evaluating and testing the relevant product and providing feedback to us. You agree to report promptly to us any errors or other deficiencies in the beta product and will hold all information relating to the use and performance of the beta product in strict confidence and not disclose such information to any unauthorised third parties. Use of any beta product is otherwise subject to these Backup Products and Services Terms. Notwithstanding any other provision of these Backup Products and Services Terms, all beta products are provided "as-is" and "as available," without warranties of any kind. You hereby waive all claims, now known or later discovered, that You may have against us and our suppliers and licensors arising out of the use of any beta product.
    5. Additional Data Processing Terms. A relevant product may be configured to designate the geographic region where backed up data associated with the relevant product is stored.
      1. If a relevant product is configured to store backed up data in the European Economic Area (“EEA”) or the United Kingdom (“UK”), the European Data Processing Addendum is incorporated into these without warranties of any kind. If a relevant product is configured to store backed-up data outside of the EEA or the UK, a European data processing addendum is not incorporated into these without warranties of any kind unless otherwise agreed by the parties.
      2. If a relevant product is configured to store backed up data in the United States and it is used to process personal information of California consumers, under the California Consumer Privacy Act of 2018, as amended from time to time, and the final regulations thereunder (collectively the “CCPA”), Backupify is a “service provider” with respect to the personal information of California consumers it processes. Backupify will not sell such personal information and Backupify will not retain, use or disclose such personal information for any purpose other than for the purpose described in these Terms, or as otherwise permitted by the CCPA or applicable law.
  4. Restrictions on relevant product access and use
    1. You may not nor may You permit, facilitate or authorise any third party to:
      1. use any relevant product other than as permitted under these without warranties of any kind;
      2. remove or destroy any copyright or other proprietary markings for a relevant product or its Specifications;
      3. access or use any relevant product in any manner that could damage, disable, or overburden such relevant product, any networks or security systems;
      4. reverse engineer, decompile, disassemble, or otherwise attempt to extract source code from any relevant product, except to the extent this restriction is expressly prohibited by Applicable Law;
      5. copy, modify or create derivative works of any relevant product;
      6. alter any disabling mechanism which may reside in a relevant product;
      7. assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the relevant products, or directly or indirectly permit any unauthorised party to use or copy the relevant product;
      8. conduct or disclose the results of any form of benchmarking of a relevant product; (ix) extract any software for use in other applications; or
      9. access a relevant product to
        1. build a competitive relevant product or service;
        2. copy any, or build a relevant product using, ideas, features or graphics sourced from the relevant product.
    2. Use of the relevant products and backed up data must at all times be in compliance with all Applicable Laws. The relevant products and backed up data may not
      1. be used to send any unsolicited commercial email or invitation in violation of Applicable Law;
      2. be used to process or disclose any unencrypted personally identifiable data (such as payment card numbers or social security numbers) in violation of any Applicable Law;
      3. be deceptive, fraudulent, harmful, abusive, harassing, threatening, indecent, obscene, racially, ethnically, or otherwise objectionable, hateful, tortious, libellous, defamatory, slanderous, or otherwise in violation of Applicable Law;
      4. infringe or misappropriate any Intellectual Property Rights or other rights of any third party;
      5. be used to transmit any viruses or similar malicious software that may damage the operation of any computer, network, system or the relevant products; or
      6. violate the Backup Products and Services Terms of the backed-up site or any other agreement.
    3. If we reasonably believe any relevant product use or backed up data:
      1. violates any of the restrictions in the foregoing sections;
      2. may disrupt or threaten the operation or security of any computer, network, system or the relevant products; or
      3. may otherwise subject us to liability, we reserve the right to refuse or disable access to the relevant product or backed up data. We may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with Applicable Law. We will use reasonable efforts to contact an administrator prior to taking such action. However, we may restrict access to any relevant product or backed up data without prior notice as necessary to comply with Applicable Law or to protect against damage or security threats. If we take any such action without prior notice, we will later provide notice to an administrator, unless prohibited by Applicable Law.
  5. Backed-up Data
    1. The Customer represents and warrants it has all rights (including from backed up sites and users) as necessary to permit access, copying and use of backed up data with the relevant product. The Customer is responsible for the accuracy, quality and legality of the backed up data, and the means by which the Customer acquired rights to the backed up data for use with the relevant product. For purposes of this Agreement, backed up data is the property of the Customer, not any user, and we are under no obligation to inform users that the Customer controls such information with us.
    2. The Customer, for itself and its users, authorises Entity to access and interact with the backed-up site to retrieve backed-up data and grants us a limited, royalty-free, non-exclusive, assignable license to use, copy, reformat, display, disclose and distribute the backed-up data solely for providing the relevant product as described in these Backup Products and Services Terms, including as authorised by an administrator for support, and as described in our Privacy Policy.
    3. Customer retains all its right, title and interest in and to the backed-up data, and we neither own nor acquire rights in the backed-up data other than the rights expressly granted under this Agreement.
    4. We will use physical, technical and administrative safeguards, consistent with commercially reasonable industry practices, designed to secure the confidentiality, integrity and availability of backed-up data under our control against accidental or unauthorised loss, access or disclosure. We use the same safeguards for all backed-up data, regardless of its nature or contents. We are a processor and not a controller of all backed-up data.
    5. Customer must maintain authorisation and access to the backed-up sites so that we are regularly able to access backed-up data for purposes of providing the relevant product. Customer agrees and acknowledges that backed-up data may not be available or restorable a) if the Customer changes such access authority or otherwise restricts our access to such backed-up Site; b) due to unavailability of the backed-up site; c) with respect to modifications to the backed-up data that are not captured in the backup frequency or retention schedule for the relevant product.
    6. Unless otherwise agreed to in writing in a separate Business Associate Agreement, You agree that backed-up data will not contain Protected Health Information and Your use of a relevant product will not otherwise make us a Business Associate of Customer or any Administrator. You must request that we enter into a valid Business Associate Agreement with the appropriate party and ensure such agreement is in place prior to the transfer of any backed-up data that requires a Business Associate Agreement. The terms “Protected Health Information” “Business Associate” and “Business Associate Agreement” will have the same meanings as set forth in the US Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the US Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), and such regulations as may be further amended from time to time (collectively, the HIPAA Standards).
  6. Use of other information
    1. If You provide us with comments or other feedback regarding the relevant products or our business (collectively “Feedback”), directly or through any third party, You do so without any expectation of compensation and hereby grant us a worldwide, irrevocable, perpetual, royalty-free right and license to use the Feedback to improve the relevant products and for any other purpose. Feedback is strictly voluntary, and we are not required to hold it in confidence.
    2. Notwithstanding anything else in these Backup Products and Services Terms or otherwise, we may evaluate and process the use of relevant products and backed-up data in an aggregate and anonymous manner and compile related statistical and performance information (“Aggregate Data”). We may use and share such Aggregate Data to improve the relevant products, develop new relevant products, analyse usage, and generally for any purpose related to our business. We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any individual Customer or natural person.
    3. Operational data concerning the use of the relevant products (“Log Data”), that servers automatically record relating to the access and use of the relevant products, IP address, authentication tokens, machine identification, access logs, and settings are used by us to provide the relevant products and operate our business and you agree that we may use such Log Data for such purposes.
  7. Your responsibility for access to your relevant product account
    1. You are responsible for the security of all Your access credentials to the relevant product, including any action You permit any person or entity to take related to the relevant product and backed-up data using your access credentials. You are responsible for the proper configuration and maintenance of safeguards as they relate to access to and use of the relevant product and backed-up data, including but not limited to individual Administrator and User permissions, local device access, network connectivity and Internet connectivity.
    2. You agree to notify us as soon as practicable of any unauthorised use of any access credentials, password or account or any other known or suspected breach of security.
  8. Support
    1. We will provide reasonable support for the relevant products in accordance with our current support Policies. An Administrator authorised by the Customer is responsible for providing first level support for each relevant product. By requesting support services, the Customer authorises us to access the relevant product and/or the backed-up data for the purpose of providing the requested relevant product support. We may rely on the instructions and authorisations given to us by any Administrator with access to a relevant product, and we will have no obligation to inform any other Administrator of the relevant product of the same.
  9. Updates and testing
    1. You agree that we may, and You hereby authorise us, from time to time, to interact remotely with any deployed relevant product in order to test, troubleshoot, or update such relevant product. During maintenance windows the relevant product may not be accessible; we will make reasonable efforts to notify You of such maintenance windows.
  10. Confidential information
    1. Both You and we agree to employ reasonable safeguards to
      1. maintain the confidentiality of each other’s Confidential Information using the same care to prevent disclosure as each of us employs to avoid disclosure of our own information of a similar nature but in no event less than a reasonable standard of care;
      2. limit access to Confidential Information to those persons or entities involved in providing or supporting the relevant products or otherwise in complying with these Backup Products and Services Terms, its affiliates, its financial or legal advisors, all of whom have a legal duty to protect the Confidential Information.
    2. Confidential Information does not include any information that
      1. is or becomes generally known to the public without breach of any obligation owed to the disclosing party,
      2. was known to the receiving party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing party,
      3. is received from a third party without breach of any obligation owed to the disclosing party,
      4. was independently developed by the receiving party;
      5. is approved for release or disclosure by the disclosing party without restriction; or
      6. is Feedback, Aggregate Data, Log Data or backed-up data.
    3. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
    4. Each party acknowledges that any breach of any provision of this Section on Treatment of Confidential Information by the receiving party may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of the applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
  11. Warranties and disclaimers
    1. Each of us represents and warrants that it has validly entered into this Agreement; has the legal power to do so, and by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
    2. During an applicable Subscription Term, we will provide the relevant product using a commercially reasonable level of skill and care in material accordance with the applicable Specifications. Your exclusive remedy in the event that we do not do so is to terminate this Agreement or any Order for cause as specified in section 17b.

      Except for the limited warranties herein, the relevant products are provided as is and with all faults. To the maximum extent permitted by applicable law, we disclaim all other promises, representations and warranties, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, system integration, data security, or warranties arising out of any course of dealing, course of performance or usage of trade.

      We make no representations or warranties about any relevant product’s compliance with laws and regulations specifically applicable to any customer or industry and disclaim all liability associated therewith.

      We are not responsible for any delays, delivery failures, or other damage resulting from risks inherent in the use of the internet and electronic communications.

      We disclaim any duties of a bailee, and you hereby waive all rights and remedies of a bailor (arising under common law or statute), related to or arising out of any possession, storage, or transmission of data by us. You acknowledge that no password-protected system of data storage can be made entirely impenetrable and agree that the relevant products and backed-up data are not guaranteed against all security threats or other vulnerabilities.

      No oral or written information or advice given by us or any reseller, administrator or other party will create any additional warranties, abrogate the disclaimers set forth above or in any way increase the scope of our obligations hereunder.
  12. Limitation of Liability
    1. To the fullest extent allowed by applicable law, in no event will either party be liable for any incidental, indirect, special, consequential or punitive damages or costs, regardless of the nature of the claim, arising out of the use or inability to use the relevant products, even if advised of the possibility of such damages (whether such damages arise in contract, tort, strict liability or otherwise). In no event will we be liable for the procurement of substitute services or relevant products.
    2. To the fullest extent permitted by applicable law, our entire cumulative liability for all claims and damages (whether such damages arise in contract, tort or strict liability) will be limited to direct damages only that does not exceed an amount equal to the fees we receive for the individual applicable relevant product in the 12 full calendar months immediately preceding the month in which the event involving that relevant product giving rise to the claim occurred.
    3. The disclaimers, exclusions and limitations of liability set forth in Sections 11 and 12 form an essential basis of this Agreement and have been relied on by both You and us, and absent such disclaimers, and limitations of liability, these Backup Products and Services Terms and the fees applicable to the relevant products would be substantially different.
  13. Indemnification
    1. We agree to defend You from third-party claims that a relevant product in the form supplied to You under these Backup Products and Services Terms infringes or misappropriates a third party’s patent, copyright or trademark rights and we will indemnify and hold You harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by us in a settlement in connection with any such claim. Our indemnification obligations will not apply to (i) claims of infringement to the extent based on Your combination of the relevant product with other relevant products, services software, data or marks if the infringement could have been avoided by the use of such relevant product, not in such combination; (ii) any modifications to the relevant product not made by us; (iii) any damages incurred as a result of Your failure to use any update to the relevant product we provide; or (iv) use of a relevant product in a manner that does not conform to its Specifications (these exceptions (i) through (iv) collectively will be referred to as "IP Exclusions"). If we determine that a relevant product is or may become subject to an infringement claim, we may, at our option: (1) procure for You the right to continue to use the relevant product; or (2) replace or modify the relevant product so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate Your use of the relevant product and will issue a refund of the fees paid (not including usage fees for services already provided) to acquire the initial use of the allegedly infringing relevant product less applicable reasonable depreciation. This Section represents Your sole and exclusive remedy and our sole and exclusive liability for any infringement claim based on the relevant products.
    2. You agree to defend us, our suppliers and affiliates, and the officers, directors, employees and representatives of each of them (each an “Indemnified Party"), from all damages and costs incurred as a result of a third-party claim and You will indemnify and hold any and all “Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by You in a settlement in connection with any such claim, to the extent the claim arises out of (a) Your breach of these Backup Products and Services Terms, including Your failure to comply with Applicable Law; or (b) if You are a third party Administrator, Your failure to cause each Customer to agree to the applicable relevant product Backup Products and Services Terms and/or Customer Terms or Your actions in excess of the authority granted to You by any Customer.
    3. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the party seeking indemnification will notify the indemnifying party in writing promptly upon learning of any claim for which indemnification is sought; (b) the indemnifying party will have control of the defence or settlement; and (c) the Indemnified Party will reasonably cooperate with the defence, at the indemnifying Party's expense.
  14. Export control and government use
    1. You represent and warrant that Your use of the relevant products and the backed-up data will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority. You will not export or re-export or allow the export or re-export of the relevant products (or backed-up Data through the use of the relevant products) in violation of any such export laws, restrictions, controls or regulations.
    2. If relevant products are to be used in the performance of a government contract or subcontract, no government requirements or regulations will be binding upon us unless specifically agreed to by us in writing. If Customer is a U.S. Government entity or person, the relevant product is being provided as a "Commercial Item" as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101), and the rights granted in the relevant product to such Content Owners are the same as the rights granted to all others under these Backup Products and Services Terms.
  15. Arbitration and/or Class action waiver
    1. All claims and disputes arising out of this Agreement or the use of any relevant product, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration. Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed for the pertinent claim. Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys' fees) will be made a part of the arbitrator’s award. The arbitration will take place in Auckland, New. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.
    2. Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration:
      1. alleged infringement or misappropriation of Intellectual Property Rights;
      2. any claims involving a party’s right to indemnification under this Agreement; or any claim for temporary or permanent injunctive relief.
    3. In any circumstances where the parties may litigate in court, the parties hereby waive any right to a trial by jury and hereby submit to the personal jurisdiction of the courts set forth in section 17.
    4. All disputes arising out of or related to this Agreement or any relevant product must be brought on an individual basis, and You hereby waive Your right to, and agree that You will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.
  16. Term and termination
    1. A Subscription Term will commence on the date specified in the Order and will continue for the initial term specified in the Order or, if not specified, for an initial term of one (1) year. Each Subscription Term will automatically renew for subsequent terms of one (1) year each unless either party provides written notice of its desire to terminate at least ninety (90) days prior to the expiration of the then-current Subscription Term. These Backup Products and Services Terms will continue until all Subscription Terms have expired or been terminated.
    2. Termination for Breach. Either party may terminate this Agreement or an individual Order for cause upon 30 days notice of a material breach of any of its duties, obligations or responsibilities under this Agreement, provided that the breaching party has failed to cure such breach (or provide an acceptable plan for curing such breach) within the thirty (30) day notice period.
    3. Access to backed-up sites. If a backed-up site amends its API guidelines in such a way that materially affects our ability to access the backed-up Site to provide the relevant product in accordance with the Specifications, and if we are unable to perform substantially the same functionality, either party may terminate the applicable Order by providing to the other thirty (30) days written notice. We will refund any unused prepaid fees for the remainder of the applicable Subscription Term as your sole and exclusive remedy.
    4. Effect of Termination. Upon any termination of a Subscription Term, Customer will immediately discontinue all use of the relevant product. For up to sixty (60) days after the effective date of termination, we will, upon written request allow Customer to export or download a copy of its backed-up Data as provided in the Specifications. After such period, we have no obligation to maintain or provide any backed-up Data and may thereafter delete or destroy all copies of the backed-up Data, unless legally prohibited.
    5. We reserve the right at any time to modify these Backup Products and Services Terms and updated Backup Products and Services Terms will be posted within the applicable Online Portal. We will make reasonable efforts to notify You of material changes and Your continued use of any relevant product after an update will indicate Your acceptance of any updated Backup Products and Services Terms. If You do not agree to any updated Backup Products and Services Terms, You must terminate Your use of the relevant product immediately. If You provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the relevant product. We may also modify and update Policies, Specifications, and other support materials. All such changes are effective immediately upon posting to the Online Portal and You should review such materials on a regular basis so that You will be apprised of any changes.
  17. Miscellaneous
    1. Construction. The section headings in these Backup Products and Services Terms are for convenience only and will not be deemed to be substantive; any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of these Backup Products and Services Terms.
    2. Governing Law. This Agreement will be governed, by Connecticut law, without reference to conflicts of law principles. The parties agree that exclusive jurisdiction for any permitted actions connected with this Agreement will be in the Superior Courts of Fairfield County, Connecticut or the United States District Court for the District of Connecticut. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
    3. Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
    4. Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.
    5. Electronic Communications. You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement as if in writing.
    6. Assignment. You may not assign this Agreement (including with respect to any individual relevant product or backed-up Data), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganisation by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns.
    7. Force Majeure. Any delay in or failure of performance of either of us will not constitute a default under these Backup Products and Services Terms or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of God, fire, flood, explosion, war, strikes, loss of any necessary power or communications sources or connections, failures in or affecting the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal or malicious acts of a third party, changes or modifications in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder; provided that, any such delay does not extend beyond 30 calendar days.
    8. No Waiver. The failure to enforce or the waiver by either of us of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.
    9. Survival. The applicable sections titled Fees and Payment, Use of Other Information, Confidential Information, Warranties and Disclaimer, Limitations of Liability, Indemnification, Term and Termination, Arbitration and Class Action Waiver, Miscellaneous and Definitions will survive the termination or expiration of this Agreement.
    10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    11. English Language. These Backup Products and Services Terms have been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
    12. Notices. All notices required or permitted hereunder will be in writing and delivered by a nationally recognised overnight courier and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to You will be sent to You at the address specified in Your Order or in an Online Portal. Notices to us must be sent to P.O. Box 272-1203, Papakura, 2244. In addition, we may send any notice required or permitted hereunder to You at the email address specified in an Online Portal and such notice will be deemed effective upon our receipt of email delivery notification.
    13. Entire Agreement. These Term of Use, applicable Order and applicable Policies constitute the entire understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.
    14. Publicity. You agree that we may publicly refer to Customer on our website and sales presentations, as a customer of ours and may use the Customer’s logo for such purposes.

    1. “Administrator” means one or more persons or entities authorised by Customer to manage or use the relevant product on Customer’s behalf, including access to and control of backed-up Data. A relevant product may have multiple Administrators and we expressly may rely on the authorisation and instructions of any relevant product Administrator, until we receive written instructions to the contrary.
    2. “Agreement” means an Order for a relevant product together with and subject to these Backup Products and Services Terms.
    3. "Applicable Law" means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these Backup Products and Services Terms.
    4. “backed-up data” means the data and content that Customer designates for copying, backup and use with a relevant product.
    5. “backed-up site” means a third party application or service with which the relevant product interacts, upon the Customer’s authorisation, to obtain copies of the backed-up data.
    6. “Confidential Information” means all operational written or oral information, disclosed by either party to the other that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, but not including Feedback, Aggregate Data, Log Data or backed-up Data.
    7. “Customer” is the entity that owns the backed-up site account. References to “Customer” shall in the applicable context also refer to any Administrator acting on Customer’s behalf.
    8. “Device” means any hardware-based component of a relevant product offering.
    9. "Enhancement" means any upgrade, update or modification to a relevant product. All Enhancements will be subject to these Backup Products and Services Terms.
    10. "Intellectual Property Rights" means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
    11. “Online Portal” means a web-based application or interface that contains information related to the relevant product, including the ability to order, pay for, manage, monitor, support and/or use the relevant product.
    12. “Order” means an order for a relevant product that specifies such things as the backed-up Site, data storage allotment and/or number of Users. An Order may be created at the time of relevant product setup, by separate written or electronic document or by an Administrator or reseller on behalf of the Customer.
    13. "relevant product" means any backup product provided through the use of Software, web-based Services, or Devices, including all Enhancements to relevant products, all subject to these Backup Products and Services Terms.
    14. "Policies" means the terms and conditions applicable to order, configure, access, use, and support the relevant products. Policies are published on an Online Portal.
    15. "Specifications" means any documentation, user manuals or other materials relating to the relevant products. Specifications may be published on an Online Portal.
    16. “Subscription Term” means the initial and any renewal term during which Customer agrees to subscribe to a relevant product, as specified in an Order and these Backup Products and Services Terms and Policies.
    17. “User” means an individual affiliated with Customer who Customer authorises to use or have use of the relevant product. For purposes of this Agreement, the Customer will be the owner of the backed up data and the Customer is responsible for the acts and omissions of its Users.
    18. “You” means, in the applicable context, the person or entity agreeing to these Backup Products and Services Terms, either a Customer or an authorised Administrator acting on behalf of a Customer.
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