Non Disclosure Agreement

TERMS AND CONDITIONS

PLEASE READ CAREFULLY

NOTE: By accessing, using or browsing www.Backup247.com.au (“Website”) and/or signing up for the Service, you unconditionally agree to be bound by these Terms and Conditions. 

In these Terms and Conditions “we”, “our”, or  “us” are references to the registered holder of the Website, Backup247 Pty Ltd (ACN 129 964 209) (“Backup247”), a company duly incorporated in the State of Victoria and having its offices situated in Camberwell, Victoria. The “Customer” or “you” are references to the purchaser who via the Website has offered to purchase certain Services from Backup247, and whose offer has been accepted by Backup247.  

 

  1. DEFINITIONS

“Acceptable Use Policy” means Backup247’s Acceptable Use Policy available on the Website.

“Account” means an account set up by Backup247 to allow the Customer to utilise the Service.

“Business Days” means Monday through Friday, excluding public holidays that fall on any of these days.

“Confidential Information” means the information set out in Section 12 of these Terms and Conditions.

“Consumer Protection Legislation” means the Trade Practices Act 1974 (Cth), as amended from time to time, or any other piece of consumer protection legislation in Australia. 

“Contact Details” means the information set out in Section 4 of these Terms and Conditions.

“Customer” includes all officers, agents and representatives of the Customer.

“Backup247” means Backup247 Pty Ltd (ACN 129 964 209) and includes all officers, agents and representatives of Backup247.

“Data Storage Limit(s)” means the data storage limit initially agreed to by the Customer when signing up for the Service or one or more of the data storage limits set out on the Website.

“Intellectual Property Rights” means all rights in or to any patent, copyright, registered design or other design rights, utility model, trademark (whether registered or not and including any rights in get up or trade dress), brand name, services mark, trade name, eligible layout right, chip topography and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and wherever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for any of the forgoing rights. 

“Notice” means a notice in writing sent by Backup247 to the Customer in accordance with clause 6.13of these Terms and Conditions in the event of non-payment of the Subscription Fee.

“Order” means an order for a Service placed via the Website by the Customer. 

“Payment” means payment by the Customer of the Subscription Fee in accordance with clause 6 of these Terms and Conditions.

“Plan” means a Service plan listed on the Website.

“Privacy Policy” means Backup247’s Privacy Policy available on the Website. 

“Service” or “Services” means the data backup services provided by Backup247 in accordance with these Terms and Conditions. 

“Software” has the meaning given to it in Section 5 of these Terms and Conditions.”Subscription Fee/s” means the subscription fee/s initially agreed to by the Customer when signing up for the Service as set out on the Website.

 

  1. CONDITION OF SUPPLY ACCEPTANCE OF CUSTOMER’S ORDER

2.1 These Terms and Conditions apply to every Order between Backup247 and the Customer.

2.2 A contract is only concluded between Backup247 and Customer for the supply of the Services when the Order has been accepted by Backup247.

 

  1. TERM

3.1 The term for the provision of Services under an Order commences on the date the Order is accepted by Backup247 and is continues in force until terminated in accordance with any of clauses 6.13, a), 7.8 or Section 10 of these Terms and Conditions.

 

  1. PROVISION OF INFORMATION BY THE CUSTOMER

4.1 When placing an Order, the Customer must provide Backup247 with the Customer’s:

  1. a) name or business name as the case may be;
  2. b) ACN or ABN (if applicable);
  3. c) representative who will be the primary contact for Backup247 for matters relating to this Agreement;
  4. d) postal address;
  5. e) telephone number(s);
  6. f) facsimile number(s); and
  7. g) email address(es).

(together the Contact Details)

4.2 The Customer undertakes to notify Backup247 in writing of any changes to the Contact Details as soon as practicable after they are changed.

4.3 Backup247 will only use the Contact Details in accordance with its Privacy Policy.

4.4 Backup247 may contact the Customer using any of the Contact Details in relation to matters to do with the Customer’s account and other relevant matters related to Backup247 and its business of providing the Service/s.

 

  1. PROVISION OF SERVICES BY BACKUP247

5.1 A summary and basic description of the Services are set out on the Website.

5.2 Backup247 may provide the Customer with software for use in relation to the Service (“Software”).

5.3 Backup247 makes no warranty in relation to the Software and will not be liable for any damages or loss (including indirect or consequential loss) of any kind arising from the use of: 

  1. a) the Software; or
  2. b) Backup247’s storage of the Customer’s data (including where such damage or loss is caused by negligence). 

Backup247 further makes no warranty (whether express or implied) in relation to merchantability or fitness for a particular purpose in relation to the Software.

  1. c) no incorrect use, abuse or corruption of the Software by the Customer. 

5.7 To the extent that Backup247 has any liability to the Customer, such liability will be limited to the value of any Subscription Fees paid or payable to Backup247 for the month in respect of which such liability arose.

5.8 The Software will be provided with a software licence, which the Customer must read and agree to before using the Software.

5.9 Software manuals are provided in PDF format only and without warranty of any kind. 

5.10 The Software may be updated or changed at any time at Backup247’s sole discretion.

5.11 The Customer acknowledges that Backup247 remains the sole owner of all Intellectual Property Rights in the Software. This ownership is absolute, worldwide and includes all Intellectual Property Rights arising from or in relation to any future Software.

5.12 The Customer shall not copy, alter, modify, reproduce, reverse assemble or reverse compile the Software in whole or part or permit another to do so without Backup247’s prior written consent.

5.13 Backup247 shall not be liable for any indirect, special, incidental or consequential damages, loss of business, loss of profits, loss of backup data, or the like, whether based on breach of contract, tort (including negligence), product liability or otherwise, even if Backup247 or its representatives have been advised of the possibility of such damages.

5.14 Recovery assistance is offered by Backup247 on a ‘good faith’ basis, and under no circumstances does Backup247 guarantee a minimum offering in the Service/s it offers, or provision of any recovery equipment.

5.15 Backup247 does not warrant that the Service/s will always be uninterrupted or error free, that defects in the backup service will be corrected, or that the Software and/or Service/s is/are virus and/or harmful component-free.

5.16 There may be extended times of the Service being unavailable. In such circumstances, Backup247 will endeavour to resolve these unavailability issues as soon as practicable, but does not warrant that its servers will be available at all times and will not be held responsible for backup failure due to electrical faults, internet failure or any other issues that contribute to or cause backup failure. 

5.17 Data speeds are dependent on current network throughput and may vary due to network congestion and/or volume of traffic on the Backup247 or carrier networks. Backup247 does not warrant that any particular data speed will be available at any particular time.

5.18 Backup247 is not responsible for the speed of data backup or restore.

5.19 Backup247 is not responsible for the time taken for delivery of any files or hard drives through either network transfer or physical delivery via courier, postal service or any other method if provided by Backup247 as part of the Service.

5.20 The Customer indemnifies Backup247 against all and any demands, claims, actions and proceedings whatsoever and howsoever arising in connection with and arising out of:

  1. a) the Customer’s use of the Software and the Services;
  2. b) any data that is stored by Backup247 under these Terms and Conditions, including (without limitation) where such data infringes a third party’s Intellectual Property Rights, or the data is any way contrary to law or offensive to a third party; and
  3. c) any breach of the Customer’s obligations under these Terms and Conditions.

5.21 All data files are transmitted over communication company networks, which are wholly beyond the control and jurisdiction of Backup247 and are installed and maintained by the relevant communications company. If these networks are not functional for whatever reason the data backup may not work correctly or even reach the Backup247 servers. Backup247 cannot be held liable for the operation of these communication companies’ networks or the acts or omissions of officers, agents or representatives of these companies or any third parties.

5.22 Without limiting the matters for which the Customer is responsible, the Customer, and not Backup247, is specifically responsible for the following:

  1. a) the selection of the information to be backed up on the Backup247 server;
  2. b) the scheduling of the backup operations (which Backup247 will endeavor to comply with) and ensuring that successful backup has occurred;
  3. c) the cost and maintenance of all computers, servers, telephones, Cables, ADSL connections or other communication equipment required for data transmission, system access and to otherwise enable the Customer to utilise the Service. 
  4. d) providing and maintaining a functioning Internet connection to enable it to utilise the Service;
  5. e) its Internet security and all related devices such as hardware and/or software. Firewalls must be configured to communicate with the Backup247 Network. Any changes required to the Customer’s firewall configuration and other blocking software is the Customer’s responsibility and Backup247 cannot be held liable for an incorrectly configured firewall or other software/device blocking that prevents the backup data from reaching any of Backup247’s networks or servers; and
  6. f) possession of and knowledge of the content of the Customer’s encrypting keys. The Customer has sole responsibility to make sure that its encrypting keys are kept in a safe and secure place. Backup247 shall not be held liable for any indirect, special, incidental or consequential damages resulting from loss/corruption/compromise of these encrypting keys.

 

  1. PRICES, PAYMENT AND INVOICING

6.1 The Customer must pay the Subscription Fee (as initially agreed to by the Customer when placing and Order) in advance to enable access the Service.

6.2 The initial Subscription Fee and Data Storage Limit are agreed to by the Customer when placing an Order.

6.3 Payment of the Subscription Fee shall be by way of recurring monthly payments. 

6.4 Payment of the Subscription Fee through recurring monthly repayments must be made by credit card (VISA, Mastercard, American Express) or as direct debit

6.5 The Customer warrants that it is duly authorised to use the credit card or bank account it uses to pay the Subscription Fee.

6.6 If the Customer elects to pay the Subscription Fee by American Express, the Customer will incur a transaction fee for each Payment of 3% of the total amount of that Payment.

6.7 If the Customer is located in a jurisdiction other than Australia, it may incur additional fees for credit card use or money conversion. The Customer is responsible for paying all such fees.

6.8 Any fees incurred by Backup247 as a direct result of any one of the Customer’s Payments being declined (for whatever reason) will be charged to the Customer as an additional amount in the following month’s Subscription Fee unless otherwise agreed in writing between the Parties. For all declined payments (for whatever reason), a charge of $4.95 + GST will be added everytime payments are declined and added in the following month’s Subscription Fee unless otherwise agreed in writing between the Parties.

6.9 Recurring monthly Payments continue until a Service is terminated through operation of clauses 6.13, a), 7.8 or Section 10 of these Terms and Conditions.

6.10 Backup247 will provide the Customer with a Tax Invoice  within five (5) Business Days of each Payment made. Tax Invoices will be sent to the Customer in electronic form via the email address or hard copy to the postal address (as determined by Backup247) provided by the Customer in the Contact Details.

6.11 If a Service is terminated in accordance with clauses 6.13, a), 7.8 or Section 10 of these Terms and Conditions and the Customer has paid an annual Subscription Fee, Backup247 will issue a refund for the remainder of the annual Subscription Fee paid by the Customer calculated pro rata from the first day of the month after the month in which the Service was terminated.

6.12 The Customer will bear any bank or merchant fees which may be charged in relation to Backup247’s refund of the annual Subscription Fee.

6.13 In the event that any Payment of any part of the Subscription Fee is not received within five (5) Business Days from when it is due (for whatever reason), Backup247 may suspend and/or terminate the Customer’s Service as follows:

  1. a) Backup247 must send a Notice in writing to the email address or the postal address (as determined by Backup247) provided by the Customer in the Contact Details: 
  2. i) detailing the nature of the non-payment, 
  3. ii) stating that the Customer’s Service is suspended, 

iii) giving the Customer five (5) Business Days to pay the amount in the Notice; and 

  1. iv) stating that the Customer’s Service will be cancelled if payment of the amount is not made within those five (5) Business Days.
  2. b) If Backup247 does not receive payment from the Customer by the date in the Notice then Backup247 may cancel the Customer’s Service at its sole discretion.
  3. c) The Customer is liable to pay all reasonable costs incurred by Backup247 as a result of the Customer’s non-payment of the Subscription Fee.
  4. d) If Backup247 decides to terminate the Customer’s Service, any of the Customer’s backup data held on Backup247’s servers will be permanently removed as soon as practicable.

6.14 While the Customer’s Service is suspended, Backup247 will not backup any of the Customer’s data and may not provide any part of the Service at its sole discretion.

 

  1. CHANGES TO DATA STORAGE LIMITS, SUBSCRIPTION FEE AND CUSTOMER SERVICES

7.1 The initial Data Storage Limit provided by Backup247 is the amount initially agreed to by the Customer when signing up for the Service and any usage exceeding the amount initially agreed to will be charged in accordance with the pricing structures set out on the Website (as may be amended from time to time).

7.2 The following will occur before the Customer’s Subscription Fee is increased:

  1. a) the Backup247 software will advise the Customer (via the email address given in the Contact Details) when the Customer’s data storage space reaches 80% of the limit initially agreed to by the Customer when signing up for the Service. To prevent the backup from failing, when the backup quota reaches 98%, Backup247’s system will automatically upgrade the Customer’s Plan to the next available Plan;
  2. b) the Customer will be contacted via the email address given in the Contact Details to advise that this upgrade has taken place and the amount of the consequential increase in Subscription Fee;
  3. c) the email will give the Customer ten (10) Business Days to reduce the size of the Customer’s backup data and notify Backup247 that the Customer does not wish to accept the new Plan (if the Customer so chooses);
  4. d) if the Customer fails to notify Backup247 in accordance with clause 7.2c), this failure constitutes the Customer’s consent to the new Plan and consequential price increase for the new Subscription Fee and Data Storage Limit; and
  5. e) upon any increase in the Customer’s Plan, the Customer will be notified via the email address given in the Contact Details of the increase.

7.3 The increase in Subscription Fee will take effect as of the date that the Customer’s Plan is increased.

7.4 The Customer’s Payment in the following month will include both the Subscription Fee for the new Plan and the amount of the difference between the Customer’s Subscription Fee for its new Plan over its old Plan, calculated from the date that the Customer’s Plan is increased.

7.5 Customers who elect to pay their Subscription Fee via an annual Payment and who need to increase their Plan in accordance with this Section will be contacted by the email given in the Contact Details and can either choose to be invoiced for the difference between the Customer’s old Plan and the new Plan for the remaining term, or can choose to pay the difference on their credit card on a month-by-month basis.

7.6 Backup247 may change Subscription Fees and/or Data Storage Limits from time to time at its discretion in accordance with this Section.

  1. a) Backup247 will to change Subscription Fees and/or Data Storage Limit automatically increase to the next plan to avoid backup failure.

7.7 Backup247 may amend these Terms and Conditions from time to time at its discretion in accordance with clause 7.8.

7.8 If Backup247 wishes to make changes to these Terms and Conditions, the following procedure applies:

  1. a) the Customer will be contacted in writing through the email address given in the Contact Details and notified of the nature of the change/s these Terms and Conditions;
  2. b) if the Customer is unwilling to agree to the changes, the Customer may terminate the Service upon giving ten (10) Business Days notice in writing to Backup247.
  3. c) failure by the Customer to notify Backup247 in accordance with clause 7.8b), constitutes the consent to the changes to these Terms and Conditions; and

7.9 The Customer may downgrade its current Plan to a smaller Plan as currently listed on the Website in the following circumstances:

  1. a) the Customer’s current data storage is under the Data Storage Limit specified in the smaller Plan the Customer wishes to change to; and
  2. b) the Customer gives notice in writing to Backup247 stating its request to change Plans and the Plan it wishes to change to.

7.10 Where the Customer makes monthly Subscription Fee Payments and downgrades to a smaller Plan, Backup247 will not refund any Subscription Fees already paid for the remaining period of the month in which the downgrade is requested is. The rate applicable to the new Plan will be charged to the Customer starting in the subsequent month to the change.

7.11 The Customer may upgrade to a larger Plan at any time, by notifying Backup247 in writing. The increase in Subscription Fee will take effect as of the date that the Customer’s Plan is increased.

7.12 When the Customer upgrades to a larger Plan, the Customer’s Payment in the following month will include both the Subscription Fee for the new Plan and the amount of the difference between the Customer’s Subscription Fee for the new Plan over the old Plan, calculated from the date that the Customer’s Plan is increased.

 

  1. WARRANTIES

8.1 In addition to any other of the Customer’s obligations under these Terms and Conditions, the Customer expressly warrants that:

  1. a) any representative who makes or places an Order on behalf of the Customer is at least eighteen (18) years of age and has valid legal capacity to enter into the Order for a Service and to perform all of the Customer’s obligations and has all of the requisite corporate power and authority to enter into the Order and accept these Terms and Conditions and has authority to permit the installation of equipment and systems described herein;
  2. b) every officer, agent or representative of the Customer who uses the Customer’s Service has read and agreed to the obligations in these Terms and Conditions; and
  3. c) it will not breach the Acceptable Use Policy.

 

  1. DISPUTE RESOLUTION

9.1 Subject to Section 10, If either Backup247 or the Customer believes an act or omission of the other party has caused it a grievance of any kind, it must give the other party written notice of the nature of this grievance as soon as practicable after the event giving rise to the grievance.

9.2 On receipt of this notice of grievance, the parties must seek to resolve the grievance within ten (10) Business Days of the event giving rise to the grievance.

9.3 If a grievance arises out of or relates to these Terms and Conditions, the parties expressly agree to mediate the dispute in good faith to be administered by the Australian Commercial Disputes Centre or such other similar entity as agreed by the parties in writing before having recourse to any other legal remedy.

9.4 Notwithstanding the above, nothing precludes Backup247 from seeking urgent interlocutory relief to protect its Intellectual Property Rights or other valuable rights or interests in the event of any grievance.

 

  1. SUSPENSION AND TERMINATION OF AGREEMENT

10.1 In addition to any other rights it may have, Backup247 may suspend the Customer’s Service if the Customer breaches any clause of these Terms and Conditions and Backup247 as follows:

  1. a) Backup247 sends a notice in writing to the Customer to the email address given as part of the Contact Details, detailing the nature of the breach, stating that the Customer’s account is suspended and giving the Customer five (5) Business Days to rectify the breach detailed in the Notice to Backup247’s satisfaction;
  2. b) if the Customer does not rectify the breach detailed in the notice referred to in clause 10.1a) by the date given in the notice, Backup247 must send another notice in writing to the Customer at the email address given as part of the Contact Details, stating that the Customer’s Service will be cancelled in five (5) Business Days if the Customer does not rectify the breach detailed in the notice to Backup247’s satisfaction; and
  3. c) if the Customer does not rectify the breach detailed in the notice in clause 10.1a) to Backup247’s satisfaction by the date in the notice given in accordance with clause 10.1a), then Backup247 may cancel the Customer’s Service immediately without further notice, at Backup247’s sole discretion.

10.2 While the Customer’s Service is suspended, Backup247 will not backup any of the Customer’s data or provide any other part of the Service it decides not to at its sole discretion.

10.3 Notwithstanding clauses 10.1 and 10.2, breach of clauses 8.1a), 8.1c) or 5.12constitute a material breach of these Terms and Conditions and gives Backup247 the right to take any one or more of the following actions at its sole discretion (and without adhering to any notice periods or other requirements that may otherwise be required):

  1. a) immediately terminate or suspend the provision of the Service to the Customer;
  2. b) remove or disable access by the Customer to any of the Customer’s data;
  3. c) provide the Customer with a notice to cease the activities or conduct giving rise to the breach;
  4. d) warn the Customer that any further repetition of the activity or conduct giving rise to the breach will result in Backup247 immediately terminating or suspending the provision of the Service; or
  5. e) report the activities or conduct giving rise to the breach to relevant authorities.

10.4 In addition to any other termination rights given to either party in these Terms and Conditions, a Service may be terminated by the Customer by giving Backup247 (10) Business Days notice in writing.

10.5 In the event that the Customer terminates a Service in accordance with clause 10.4, the following applies:

  1. a) any of the Customer’s backup data held on Backup247’s servers will be permanently removed as soon as practicable;
  2. b) all of Backup247’s obligations under these Terms and Conditions cease;
  3. c) any unpaid amounts due to Backup247 from the Customer must be paid by the Customer within ten (10) Business Days of termination; and
  4. d) any monthly Subscription Fee payment paid in advance by the Customer will be forfeited to Backup247. 

10.6 Upon termination of this Agreement through operation of clauses 6.13, a), 7.8 or Section 10, the following applies:

  1. a) any of the Customer’s backup data held on Backup247’s servers will be permanently removed as soon as practicable;
  2. b) all of Backup247’s obligations under these Terms and Conditions cease;
  3. c) any unpaid amounts due to Backup247 from the Customer must be paid by the Customer within ten (10) Business Days of termination; and
  4. d) any monthly Subscription Fee payment paid in advance by the Customer will be forfeited to Backup247.

 

  1. INTELLECTUAL PROPERTY RIGHTS

11.1 Copyright in the Website is property of Backup247.

11.2 Material on this Website comprises copyright material, trademarks and registered trademarks which are the property of Backup247. This property may only be used for the purposes of browsing the Website and acquiring Services via the Website.

11.3 The Customer agrees that all Intellectual Property Rights subsisting in the Confidential Information or any other information issued by Backup247 to the Customer or any other person or produced by Backup247 remains the exclusive property of Backup247.

11.4 The Customer must not cause or permit anything to be done, which may damage or endanger Backup247’s Intellectual Property Rights or assist or allow any other person to do so.

 

  1. CONFIDENTIAL INFORMATION

12.1 The parties agree to keep confidential all financial, technological (including designs and specifications), strategic or business information it may receive of the other party concerning or arising from an Order or the provision of the Service/s (“Confidential Information”).

12.2 All Confidential Information remains the property of the provider and may only be used by the recipient in fulfilling its obligations under these Terms and Conditions.  

12.3 No Confidential Information may be disclosed to any third party without the provider’s written consent, except to the extent that:

  1. a)    disclosure is necessary to comply with these Terms and Conditions or any other agreement or obligation between the parties;
  2. b)    the disclosure is required by law or rules of any stock exchange on which a party is listed; or
  3. c)    the Confidential Information is in the public domain other than through a breach of these Terms and Conditions.

12.4 Where the recipient of Confidential Information believes that it is required by law to disclose any Confidential Information of the provider, the recipient must immediately notify the provider in writing and provide assistance as reasonably required by the provider, if the provider wishes to defend or resist that requirement.

 

  1. GOODS AND SERVICES TAX (GST)

13.1 All amounts expressed or described in any Order between the Customer and Backup247 are GST exclusive amounts unless expressly stated otherwise..

13.2 Backup247 will do all things reasonably available to it to assist the Customer to claim on a timely basis any input tax credits (if any) the Customer may be entitled to claim for purchase of Services.  This includes Backup247 maintaining its registered status for GST purposes, and issuing Tax Invoices for supplies made under these Terms and Conditions on a timely basis as reasonably requested by the Customer.

 

  1. FORCE MAJEURE

14.1 Backup247 shall not be liable for any nonperformance, delay, errors, data loss or other loss caused by any event reasonably beyond Backup247’s control including, but not limited to, acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, 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.

 

  1. NOTICES

All notices required under these Terms and Conditions must be in writing and hand delivered to the other party unless another method of notice is specified.

 

  1. SEVERABILITY

Each clause of these Terms and Conditions operates separately and in the event that one clause or part of one clause is found to be unenforceable, the unenforceable clause will be severed and this will not affect the enforceability of the remainder of these Terms and Conditions.

 

  1. WAIVER

Any waiver of any rights or obligations of a party must be in writing and delivered to the other party.

 

  1. GOVERNING LAW

The parties unconditionally agree that this Agreement is governed by the laws of Victoria, Australia and each party agrees to be bound by the laws of this jurisdiction.

 

  1. ENTIRE AGREEMENT

The parties agree that these Terms and Conditions and any form for an Order forms the entire understanding between the parties in relation to the provision of the Service/s and any previous discussions, negotiations or representations do not form part of this understanding. Further, neither party has relied on any representation of the other party in entering into an Order or is relying on any representation or promise made by either party which is not contained in these Terms and Conditions.

 

  1. SURVIVAL

Sections 5, 11 and 12 of these Terms and Conditions survive termination of a Service.

 

EXECUTED AS AN AGREEMENT

Date: _____/______/___________

 

SIGNED by: (name)______________________________________ ))) Signed in the presence of:Name (print) _______________________________

Signature Signature of witness

Position: Position: