REMOTE ONLINE BACKUP Terms and Conditions

Transcription

1 REMOTE ONLINE BACKUP Terms and Conditions 1. DEFINITIONS 1.1 Unless the context clearly indicates to the contrary, any term defined in the General Terms and Conditions when used herein, shall bear the same meaning as defined in the General Terms and Conditions. 1.2 Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto: Customer Data refers to the information or data that Customer requires to backup and/ or store using the Online Backup Services; Customer Server refers to the server that is hosted by Customer at Customer s site and on which the Online Backup Software is installed to enable the Server to access the Online Backup Services. The same function can be performed by a desktop or laptop computer and for the purposes of these Product Terms, a reference to Customer Server shall include a reference to a desktop or laptop computer unless otherwise indicated; Desktop/Laptop License refers to the license for the Online Backup Software that on receipt thereof allows the installation and use of the software on Customer s desktop/laptop computer in order to receive the Online Backup Services. This license applies only to usage on either a desktop or laptop computer and not a server nor a desktop/laptop computer that is used as a server. The license is non-transferable, meaning it cannot be installed on a different desktop/laptop computer at a later stage/date; Mirror Storage refers to Customer Data that is backed up on the On Premise Storage platform which can be copied (mirrored) to the YourOnline Storage Platform for redundancy. A separate license is required for Mirror Storage; YourOnline Data Centre refers to the Data Centre situated at YourOnline, 22 Pringle Rd, Tygerhof, Milnerton, 7441 and/or any other address indicated by YourOnline from time to time; YourOnline Storage Platform means the storage platform at the YourOnline Data Centre; Online Backup Services refers to the services, contemplated in these Product Terms which YourOnline renders/supplies to Customer in accordance with Customer s selections as indicated in the Application Form under such heading or description and enables Customer to do Online Backups of the Customer Data from a Customer Server to the YourOnline Storage Platform; or from a Customer Server to the On Premise Storage platform; which is hosted by Customer at Customer s site. Online Backup shall have the corresponding meaning;

2 1.2.8 Online Backup Software refers to the software that will be installed on Customer s Server at Customer s site from which the Online Backup will be managed by Customer; On Premise Storage refers to storage and/or backup of Customer Data on the storage platform which is installed at Customer s site. A separate license is required for On Premise Storage; Server License refers to the license for the Online Backup Software that on receipt thereof allows the installation and use of the Online Backup Software on the Customer Server in order to receive the Online Backup Services. This license applies only for usage or installation on a single Customer Server hosted by Customer at Customer s site. The license is non-transferable and thus cannot be installed on a different Customer Server at a later stage/date; Server Plugin(s) refers to the plugin required by Customer for their server and are required to achieve or action a specific task on the Customer Server. These plugins differ per Customer s requirements; Server Plugin(s) Licenses refers to the licenses required for the different versions of servers that are supported by the Online Backup Service; Storage Space refers to the size of the Customer Data that will be backed up on the YourOnline Storage Platform, as well as the size of the storage package Customer has subscribed to as indicated in the Application Form; 2. DURATION 2.1. Either Party may terminate the Online Backup Services at the end of the Initial Period by giving the other Party at least a calendar months written notice prior to the end of the Initial Period. Any notice of termination given by Customer during the Initial Period shall only become effective upon the expiry of the Initial Period If neither Party has given notice as contemplated in clause 2.1 above, the Online Backup Services shall endure indefinitely thereafter on the same terms and conditions (subject however to Service Fee adjustments), provided that either Party shall be entitled to terminate the Online Backup Services on 3 (three) calendar months written notice to the other to that effect. 3. SERVICE FEES 3.1 Customer will be liable to pay the Service Fees for Online Backup Services monthly in advance and in accordance with the provisions set out in the General Terms and Conditions for the following: Service Fees are payable in accordance with the amount of Server Licenses, Desktop/Laptop Licenses, Server Plugins Licenses and Storage Space required. Customer requires a license for each Customer Server and/or each desktop/laptop computer on which Customer wishes to backup and store Customer Data. Service Fees for Storage Space is determined by the size of space elected by Customer on the Application Form.

3 3.1.2 Additional Service Fees are payable in accordance with the amount of additional Storage Space required or subscribed to by Customer. Additional Storage Space is available to Customer on an existing Server License or Desktop/Laptop License subscription at an additional cost Additional Service Fees are payable should Customer require on-site assistance for installations of the Online Backup Software, restoration of Customer Data all other on-site assistance that YourOnline may provide at an additional fee Additional Service Fees are payable in accordance with the amount of Server Plugin(s) required by Customer. Customer can purchase Server Plugins depending on his/her/its requirements for the Customer Server. 3.2 Service Fees are payable in accordance with the amount of licenses required (servers Customer wants to back up). 4. UNDERTAKINGS AND ACKNOWLEDGEMENTS 4.1 YourOnline undertakes to use its reasonable endeavours to provide Customer with Online Backup Services on a 24 (twenty four) hour per day basis on each and every day for the continued duration that Customer is rendered with the Online Backup Services. 4.2 Although YourOnline uses reasonable care and diligence to ensure that the Online Backup Services are available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable, YourOnline does not warrant, represent or in any way guarantee, either expressly or by implication that the Online Backup Services are available, accurate, complete, correct, error-free, secure, up-to-date and/or reliable. YourOnline furthermore does not warrant, represent or in any way guarantee, either expressly or by implication the merchantability or fitness for a particular purpose of the Online Backup Services. The Online Backup Services accordingly are rendered "as is" and as available and are used at Customer s own discretion and risk. 4.3 The following circumstances and/or events may impact upon Customer s use of Online Backup Services and further that these circumstances and/or events are beyond YourOnline s control: (i) use of Online Backup Services by other customers; (ii) the Internet; (iii) limitations upon national and/or international bandwidth capacity; (iv) telecommunication service operator failures, which include telecommunication links and line failures; (v) mobile telecommunication service operator failures; (vi) mobile network failures; (vii) operating systems; (viii) access technology failures; (ix) quality of service of telecommunication links or lines; (x) any action, omission and/or failure by Customer and/or his/her/its systems, software, network and/or equipment which has an impact on Online Backup Services; and (xi) any other action, omission and/or failure not within YourOnline s control which has an impact on Online Backup Services. 4.4 Customer acknowledges that by agreeing or signing of the these Product Terms, he/she/it is also bound by the End User License Terms set forth by the License holder and stated below and Customer shall be liable to the License holder for failure to adhere/comply to their License Terms.

4 5. TERMS AND CONDITIONS SPECIFIC TO ONLINE BACKUP SERVICES 5.1 Should Customer be allowed by YourOnline to make any amendments to its Online Backup Services online on the Systems provided by YourOnline such as increasing the amount of licences Customer requires, then the Agreement, including these Product Terms shall apply automatically to such amendments, irrespective whether Customer has agreed to it at the time or not. 5.2 Customer cannot downgrade the Online Backup Services during the Initial Period. Should the provision of the Online Backup Services continue as contemplated in clause 2.2 above, Customer shall give 1 (one) month s prior written notice for any downgrade. 5.3 YourOnline grants Customer, for the duration of receipt of Online Backup Services, a limited, non-perpetual, non-exclusive, non-transferable license per Customer Server and per desktop/laptop computer (as indicated in the Application Form) in respect of which he/she/it wants to use Online Backup, for the right to use the Online Backup Software and any other software required, in accordance with the provisions of the Agreement, including these Product Terms and/or in terms of written instructions provided to Customer by YourOnline from time to time. 5.4 Customer undertakes to use Online Backup solely for internal purposes and shall not be entitled to directly or indirectly transfer, distribute, re-distribute, copy, sell, re-sell, lease, rent, lend, license or sub-license Online Backup in whole or in part in any way whatsoever to any third party. 5.5 Customer acknowledges that all title and Intellectual Property Rights in Online Backups, including the Online Backup Software, training and/or user manuals, provided to Customer, are owned by and shall remain vested in YourOnline, its licensors or its suppliers, as the case may be. Except if otherwise agreed Customer accordingly agrees not to copy, duplicate, reproduce, transmit, modify, reverse engineer, decompile, or disassemble Online Backup or any portion thereof, including the Online Backup Software and any other software associated with it in any way whatsoever and shall only use it for the purpose it is supplied. 5.6 YourOnline represents that, to the best of its knowledge, Online Backup does not infringe upon or violate any Intellectual Property Rights of any third party. 5.7 Customer acknowledges the nature of Online Backup and accordingly agrees that the specification and operation of Online Backup is known to him/her/it and accepts that it is suitable for the purpose it is intended to be used. 5.8 Installation The Parties shall prior to the installation date of the Online Backup Software on Customer s Server agree to the specific requirements pertaining to the installation and configuration of the Online Backup Software, provided that Customer s requirements shall not fall outside the scope of the Online Backup Services provided by YourOnline.

5 5.8.2 Installation can be performed by Customer himself/herself/itself online. Where Customer requests installation onto Customer s Server directly by YourOnline or its agents at Customer site, YourOnline shall provide such services at additional Service Fees. Same shall be specified in the Application Form Should any Server Plugin be required to ensure the operation of Online Backup on the Customer Server, YourOnline shall provide same at additional Service Fees, which shall be specified in the Application Form. Customer agrees to be bound by the terms and conditions of any Server Plugin license/s granted by the licensor of such Server Plugin(s) that are acquired and installed Customer shall accept installation of the Online Backup Software including any Server Plugin required by allowing YourOnline or its agents, reasonable access to its premises to install and configure the Online Backup Software or any Server Plugin whenever required as aforesaid. A signed delivery note shall constitute prima facie proof that Online Backup Software and Server Plugin(s) (where applicable) have been delivered, received, installed and configured on Customer Server in accordance with Customer s specified requirements, and that it is operational, whether such delivery note is signed by Customer or his/her/its employee or representative. Should Customer fail to sign a delivery note within 3 (three) days of complete installation and configuration, then the Online Backup installation is deemed to be fully operational Any encryption key issued to Customer is its own and absolute responsibility and if lost YourOnline shall not be able to provide it to Customer resulting in any backups made by Customer using Online Backup to be of no use Should Customer require YourOnline to attend to the first backup by way of a Customer Data dump on a server situated at YourOnline Data Centre prior to an Online Backup, YourOnline shall attend to the Customer Data dump. Customer acknowledges that YourOnline may charge additional Service Fees, as stipulated in the Application Form, for such Customer Data dump Should Customer at any time require YourOnline to attend to an Online Backup by way of a Customer Data dump on to the YourOnline Server Platform from Customer site, YourOnline shall attend to the Online Backup at Customer site. Customer acknowledges that YourOnline may charge additional Service Fees, as stipulated in the Application Form, for such a Customer Data dump Although YourOline shall use the necessary skill and diligence when attending to the performance of any functions/tasks contemplated in clause 5.8 it shall be done at Customer s risk Since Customer is responsible to determine the selection of what Customer Data Customer wants to backup, YourOnline, its licensors or its suppliers take no responsibility in any way whatsoever for any such Online Backup performed by it in accordance with Customer s selection. 5.9 Customer specifically agrees that it shall not: circumvent any component and/or process of Online Backup or cause it to be done in any way whatsoever; and

6 5.9.2 use/access Online Backup or cause it to be used and/or accessed in any way other than authorised by YourOnline in terms of these Product Terms Storage Customer can store the Customer Data on the YourOnline Server Platform. The maximum Storage Space per Customer Server and/or desktop/laptop shall be the Storage Space, as indicated in the Application Form or as it may be amended by the Parties from time to time by agreement, in writing At an additional Service Fee for the licenses, Customer can opt for On Premise Storage and/or Mirror Storage, which shall be stipulated in the Application Form or agreed to in writing at any later stage At YourOnline s discretion a Service Fee can be charged should Customer require assistance from YourOnline to repair the On Premise Storage; or any other assistance related to the On Premise Storage YourOnline is not responsible for any procurement and maintenance of any hardware required or related to the On Premise Storage Customer acknowledges that he/she/it is responsible for the operating system and hardware related to On Premise Storage Restoration of data No additional Service Fees are charged for online restoration of Customer Data on a Customer Server and/or desktop/laptop computer from an Online Backup done by Customer Should Customer require any on-site restoration of Customer Data on the Customer Server from the available Online Backup of that Customer Server, YourOnline shall attend to it. YourOnline may charge Service Fees, which it may determine in its sole discretion, for the on-site restoration A signed delivery note or the like shall constitute prima facie proof that a requested on-site restoration has been delivered, received, installed and that it is operational, whether such delivery note is signed by Customer or his/her/its employee or representative. Should Customer fail to sign a delivery note within 3 (three) days of completion, then the restoration is deemed to be fully operational Although YourOnline shall use the necessary skill and diligence when attending to the restoration of Customer Data, such restoration shall be done at Customer s risk and YourOnline does not guarantee that such restoration shall be successful Hosting YourOnline shall host Customer Data on the YourOnline Storage Platform. Alternatively Customer may host Customer Data on the On Premise Storage platform. Customer acknowledges that it will be responsible for the Customer Data should they opt to host its Customer Data on the On Premise Storage platform situated at Customer site, YourOnline shall not be held responsible for the loss of Customer Data.

7 Customer acknowledges that YourOnline has no access to Customer Data or access to filter Customer Data or intercept Customer Data and Customer is responsible and accountable for all the Customer Data and the contents thereof. YourOnline shall not be liable for any illegal action or omission of Customer, including without limitation, improper use, misuse, neglect or abuse. Furthermore Customer shall not hold YourOnline and/or its licensors liable for loss of Customer Data as a result of network interruptions, loss of power and or faulty hardware. Customer indemnifies YourOnline and its licensors from such loss of Customer Data hosted on the YourOnline Storage Platform Upon termination of Online Backup Services and/or the termination of any license for any reason whatsoever, whichever is applicable, and Customer shall immediately cease any use of Online Backup Services, which shall include the Customer Servers, any Online Backup Software, Online Backup Customer Data restoration, Mirror Storage and other related software, training and/or user manuals. All Online Backups made shall be deleted by Customer upon such termination. Customer shall ensure that any Online Backup Software shall be removed from the relevant Customer Server/s and/or desktop/laptop computer/s All Customer Data stored on the YourOnline Storage Platform shall be deleted upon termination. Customer must ensure that all Customer Data is exported to its own storage device and YourOnline shall not be responsible in any manner whatsoever for Customer Data and/or the loss thereof due to the termination Customer accepts full responsibility for the content of any Online Backup delivered/transmitted/sent/stored using the Online Backup Services. Customer furthermore agrees that YourOnline has no interest in the contents of any such Online Backup and agrees that nothing that YourOnline, its licensors or its suppliers do in the performance of its/their obligations in terms of Online Backup Services shall be construed as an assumption of responsibility or liability by YourOnline, its licensors or its suppliers of the content/customer Data which is delivered/transmitted/sent/stored using the Online Backup Services whether or not YourOnline, its licensors or its suppliers had knowledge of such content/customer Data. Customer indemnifies YourOnline, its licensors or its suppliers and agrees to hold YourOnline, its licensors or its suppliers harmless from and against losses or damages suffered or incurred by YourOnline or for any such claims instituted against YourOnline by a third party, arising out of or relating to the delivering/transmitting/sending/storing of any Customer Data or content via Online Backup Licensor s (Qnap, Asustor & Attix5) End-User License Terms The Software and the Software Documentation and the copyright and other Intellectual Property Rights of whatsoever nature therein and thereto are and shall remain the property of Qnap, Asustor & Attix The End-User acknowledges that the Software may contain technology / software that has been supplied to Qnap, Asustor & Attix5 under license and that the copyright and all proprietary rights in such technology / software shall be with the relevant Licensor and / or owner.

8 The End-User shall notify Qnap, Asustor & Attix5 or any of its Authorised Partners (such as YourOnline ) immediately if it becomes aware of any unauthorised use of the whole or any part of the Software or Software Documentation The End-User shall during the continuance of the License: effect and maintain adequate security measures to safeguard the Software and Software Documentation from access or use by any unauthorised persons; keep the Software and all copies thereof and the Software Documentation under the End-User's effective control Subject to the conditions and limitations on liability stated herein, Qnap, Asustor & Attix5 warrants that, when delivered and for a period of 60 (sixty) days thereafter, the Software licensed hereunder will materially conform to the Software as demonstrated to the End-User prior to the installation thereof, however Qnap, Asustor & Attix5 does not warrant that the operation will be uninterrupted or error free. All claims and remedies are limited in the manner expressly provided in the agreement between Qnap, Asustor & Attix5 and its Authorised Partners The sole and exclusive remedy of End-User, insofar as the agreement between Qnap, Asustor & Attix5 and its Authorised Partners provides, for any breach of Qnap, Asustor & Attix5 s warranty shall be to obtain from Qnap, Asustor & Attix5 via the Authorised Partner the repair or replacement of the defective Software that is returned to Qnap, Asustor & Attix5 s offices or the offices of its Authorised Partners, with the freight prepaid. Qnap, Asustor & Attix5 s warranty shall apply for the period of 60 (sixty) days for the Software following the date Qnap, Asustor & Attix5 or its Authorised Partners make Software available to End-User This warranty will only apply for problems reported in writing to Qnap, Asustor & Attix5 or the applicable Authorised Partner during such warranty period and will not apply if: the Software is not used in accordance with the Software Documentation; insignificant defects, such as errors that can be easily corrected and will not show up as a performance defect; the Software or any part thereof has been altered, modified deleted or added by End-User or any other third party without the prior written consent of Qnap, Asustor & Attix5; a defect in the Software has been caused by any of End-User's malfunctioning equipment; or any other use within the control of End-User results in the Software becoming inoperative.

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