Amidata Terms and Conditions

Amidata General Terms

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Amidata Cloud Connect & 365 Protect Terms & Conditions

OFFSITE DATA BACKUP AND RECOVERY SERVICES

Welcome to Amidata Cloud Connect and 365 Protect, a Hosted Web Service operated by Amidata Ltd. (“Amidata”, “we”, “us”, or “our”). We provide the Hosted Web Service and a number of related tools and services, which may include Veeam’s Backup & Replication application for d   ata backup (collectively, “Services”). The following terms and conditions (the “Terms of Use”) form a binding agreement between you and us regarding the use of our Services. Please review the following terms carefully. Each time you access the Hosted Web Service or use the Services, you are agreeing to be bound by these terms, whether you are a “Trialer” (which means that you simply browse the Site) or you are a “Subscriber” (which means that you have established a subscription on the Site (your “Subscription”)). If you are using the Site or Services as a representative of a company or legal entity, (i) you represent that you have the authority to enter into these Terms of Use on behalf of that company or entity, (ii) you agree that the terms "you" and "your" in these Terms of Use refer to your company or legal entity – and with respect to any terms applicable to Business Subscriber Users (as defined below) to you personally. If you do not agree to all of these terms, we are unwilling to grant you access to the Site or Services, and you must cease access to the Site and Services immediately. In addition, certain areas of the Site or Services may be subject to additional terms of use posted within, adjacent to or linked to from such areas. Any such terms are incorporated into these Terms of Use.

USERS

We have designed our Services to meet the needs of various types of Subscribers; certain Services are designed solely for individual use, while others are designed for commercial use, as determined by us and explained on the Site. Please use the appropriate Service.

Trialers. A potential customer may conduct a trial of our services may browse the Site in accordance with these Terms of Use, but will not have access to our core Services without first becoming a Subscriber. Basically, only Subscribers can backup with us.

Subscribers. To start your backup process and Subscription, you may either: (i) provide your email address and select a password; or (ii) authenticate yourself through a Backed up Site (defined below) and obtain a Token (defined below). We will refer to your email address and password or your Token as your “Credentials”. You may not transfer or share your log-in information with any third parties, and you are solely responsible for maintaining the confidentiality of such log-in information. You acknowledge and agree that we rely on Credentials to know whether users accessing the Site and using our Services are authorised to do so. If someone accesses our Site or Services using your Credentials, we will rely on the Credentials and will assume that it is really you who is accessing the Site and Services. You are solely responsible for any and all use of your Credentials and Subscription and all activities that occur under or in connection with your Credentials or Subscription. You agree to be responsible for any act or omission of any users that access the Site or Services under your

Credentials. You promise that all information you provide to us is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).

Business Subscribers. A Subscriber may be an individual or a legal or governmental entity (e.g., corporate, limited liability company, government agency). If an individual or legal entity accesses the Services for a commercial purpose or on behalf of legal or governmental entity, you are a “Business Subscriber”. If you access the Services for the benefit of a Business Subscriber, as an employee, contractor or agent, you are a “Business Subscriber User”. Each Business Subscriber User must be provided his or her own Credentials by the Business Subscriber. As between a Business Subscriber and a Business Subscriber User, the Business Subscriber will be the owner of the Backed up Data (as defined below). If you are a Business Subscriber User, you further acknowledge and agree that the Business Subscriber may select one or more administrators to control, manage and use the Services on its behalf, and the administrators may grant (or may grant to other Business Subscriber Users) certain privileges such as access to and control of the Backed up Data, for which you may bear responsibility. Each Business Subscriber is responsible for the acts and omissions of its Business Subscriber Users. Subscribers, Business Subscriber Users and Visitors may be referred to collectively as “Users”.

HOW YOU BACKUP

Subject to your compliance with the terms and conditions of this Terms of Use, we will undertake commercially reasonable efforts to save a copy of your data and other files that exist on third-party websites that you designate for backup (your "Backed up Data") to a server operated by Amidata or our agents. Then, on a going forward basis, we will automatically poll their API for changes or additions to the Backed up Data and periodically re-save a copy of a modified file or create a copy of a newly designated file. Before we can backup your data, we will need you to authorise us to act on your behalf to access and interact with the websites from which we will collect Backed up Data, such as social media and web-based email sites (“Backed up Site”) so we can retrieve and store duplicate copies of the Backed up Data. Where reasonably possible, we will not collect your username and password to these Backed up Sites, and we will instead store the unique authorisation code provided to us by the Backed up Site (a “Token”) to access such site on your behalf. If the Backed up Site does not provide for a Token in a manner that we can readily use it, we may require that you provide us with your user name and password for the Backed up Site. You can revoke our access to such site(s) at any time by amending the appropriate settings from within your settings on the applicable Backed up Site or by changing your Subscription settings on our Site. You hereby grant us a license to use, reproduce, access, view, modify, reformat, translate and transfer your Backed up Data, solely and to the limited extent necessary to perform our obligations hereunder and provide you the Services. You should note that a Backed up Site may change or amend its guidelines and our access to it at any time, and we cannot guarantee that our Services will always include a connection to such Backed up Site.

BACKED UP DATA

Availability. Your Backed up Data may not be available or restorable if: (a) we have not completed copying your selected files or changed files and (b) you change your password on a Backed up Site or otherwise restrict our access to such site; or (c) you Subscription expires or terminates. You represent and warrant that your Backed up Data will comply with the terms and conditions of the Backed up Site on which it is located, and you agree that we may disclose such Backed up Data to the Backed up Site to the extent required by the terms under which we are granted access to that Backed up Site.

Access. We will take reasonable efforts to restrict access to the Backed up Data to Subscribers using their applicable Credentials. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge that Site and the Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.

Review. We do not normally review, inspect, edit or monitor any Backed up Data. However, if we believe that a Subscription is being used for storage and distribution of any illegal material such as copyrighted content, we reserve the right to examine the content of the Backed up Data. We reserve the right to refuse, remove or disable access to any Backed up Data stored on our servers for any reason including that the Backed up Data or its storage is illegal or may violate these Terms of Use.

FEES

As a Subscriber, you agree to pay our then-current and applicable subscription fees (as listed on the Site) for the Services, based on the level of Services for which you sign up. Your use of the Services are limited to the restrictions established in your applicable plan (e.g., limitations on storage amounts or the number of accounts). If you are a Business Subscriber User, your business or organization may pay fees on your behalf. Amidata charges and collects in advance for use of certain Services. Unless you designate in your Subscription preferences or notify us that you do not want your subscription to be auto-renewed, you agree that we may automatically renew your Subscription to the Services and automatically charge you the then-current renewal fees for such renewed subscription using the credit card associated with your subscription at the beginning of each recurring period.

Non-Payment. You further agree that we may suspend your access to any Services if, at any time, you have not paid all fees that you owe to us. In the event we are unable to collect the fees you owe us, we may take any other steps we deem necessary to collect such fees from you, and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less.

Promotions. We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point.

OWNERSHIP

You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services (“Our Technology”) are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms of Use grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according to these Terms of Use. Furthermore, nothing in these Terms of Use will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of Amidata or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with and will inure to us or those other entities. To the extent indicated, any use of third party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by these Terms of Use. Furthermore, any comments, ideas and/or reports about the Site or Services that you provide to us, whether in written or electronic form (“Feedback”), shall be considered our proprietary and confidential information, and you hereby irrevocably transfer and assign to us all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that you may have with respect to any such Feedback.

MODIFICATIONS TO THE SERVICES

We may, in our sole discretion, upgrade, enhance, change and modify the Services, including by discontinuing a Service or any aspect or feature thereof, including the manner and extent to which we interact with the Backed up Sites (collectively, “Modifications”). Any Modifications will be subject to these Terms of Use, and we will use reasonable efforts to provide notice of adverse and material changes to the Services or changes to these Terms of Use by posting them on our Site. It is your responsibility to periodically check the Site. Changes to these Terms of Use, which may be made in our sole and exclusive discretion, will be effective upon acceptance of these Terms of Use for new subscriptions and effective for all existing Users thirty (30) calendar days after the posting of the new Terms of Use on the Site. You agree to be bound to these Terms of Use, as modified. If you do not agree to the modified Terms of Use, you are not permitted to use the Services and must terminate your subscription immediately.
Rules Regarding Content. When you access the Site and/or Services, you obtain access to various kinds of information and materials, all of which we call “Content.” We do not consider your Backed up Data as Content, but Content will include information and materials posted to a public area of the Site. You are entirely responsible for each individual item of Content that you post, email or otherwise make available on the Site or the Services. As between you and us, you retain ownership and any intellectual property rights in any copyrighted materials that are contained in Content that you post to the Site or through the Services. You grant us a non-exclusive, royalty-free, fully paid, fully sublicenseable, worldwide license, under any and all of your copyright and other intellectual property rights related to that Content. You agree that any such Content or any derivative works thereof (other than personally identifiable information about you), may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by us, and searched, displayed, printed or otherwise used or exploited by our customers. You agree not to revise Content posted by others. Though we strive to enforce these rules with all of our Users, you may be exposed through the Site or Services to Content that violates our policies or is otherwise offensive. You access the Site and Services at your own risk. We may, but are not obligated to terminate your Subscription and/or remove Content from the Site if we determine or suspect that a Subscriber or the Subscriber’s Content violates the terms of these Terms of Use or the applicable agreement with the offending User(s). We take no responsibility for your exposure to Content on the Site or through the Services whether it violates our content policies or not.

RESTRICTIONS

You represent and warrant that neither your Backed up Data nor any Content you post will:

  • Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
  • Violate the privacy, publicity, or other rights of third parties;
  • Violate any other law, statute, ordinance or regulation, including laws regarding anti-discrimination and false advertising;
  • Be false or inaccurate or becomes false or inaccurate at any time;
  • Be or contain material that is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
  • Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
  • Misrepresent your identity in any way;
  • Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;

 

  • Contain any advertising or solicitation for anything other than your Listing or service on the Site;
  • Advocate or encourage any illegal activity; or
  • Have the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.

GENERAL RULES OF USER CONDUCT

It is our goal to make access to our Site and Services a good experience for Visitors and all of our Subscribers. You agree not to, and represent and warrant that you will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use of the Site or Services or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:

  • Conduct or promote any illegal activities while using the Site or Services;
  • Upload, distribute or print anything that may be harmful to minors;
  • Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
  • Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
  • Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
  • Use the Site or Services to generate unsolicited email advertisements or spam;
  • Use the Site or Services to stalk, harass or harm another individual;
  • Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
  • Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
  • Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
  • Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
  • Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.

PRIVACY AND SECURITY

We know that your privacy is important. For this reason, we have created a privacy policy [http://www.amidata.com.au/privacy] that describes our collection, use and disclosure practices regarding any personal information that you provide to us. The security of your personal information is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Site and the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.

DURATION OF ACCESS

You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. We may provide you refunds in our sole discretion, but we are in no event required to provide you a refund pursuant to Section 4(b) if we terminate these Terms of Use for your material breach. Upon termination or expiration of your access to the Services, you will no longer have the right to access or retrieve your Backed up Data through the Site. If you contact us within thirty (30) days of the date of the termination or expiration of a paid Subscription and request a copy of your Backed up Data, we will use commercially reasonable efforts to provide you a copy of your Backed up Data in a format determined by us. Upon expiration of a free trial that is not followed by a paid Subscription, or beginning thirty (30) days after any termination or expiration of your paid Subscription, you acknowledge and agree that we may delete any or all of your Backed up Data. It is solely your responsibility to seek another source for your backup needs.

YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES OR DELETION OF YOUR BACKED UP DATA. TERMINATION OF YOUR SUBSCRIPTION WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED UP TO THE DATE OF TERMINATION THROUGH YOUR USE OF THE SITE OR ANY SERVICES, WHETHER SUCH OBLIGATION IS TO US OR A THIRD PARTY.

THIRD PARTY CONTENT AND OTHER WEBSITES

Content from other Users, advertisers, and other third parties may be made available to you through the Site and/or the Services. Because we do not control such Content, you agree that we are not responsible for any such Content. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such Content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and other third parties or violation of any third party rights related to such Content. The Site and Services may contain links to websites not operated by us. We are not responsible for the Content, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third-party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, Content, nature or reliability of third party websites, products or Services accessible by hyperlink or otherwise from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. It is your responsibility to review the privacy policies and terms of use of any other website you visit. You agree that in no event will we be liable to you in connection with any websites, Content, products, materials, or practices of any third party, including other Users.

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE, THE SERVICES OR YOUR BACKED UP DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF THE SITE OR SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

Without limiting the foregoing, under no circumstances WILL WE or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.

INDEMNIFICATION

You agree to indemnify, defend and hold harmless Amidata, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (i) any of your Content or Backed up Data, (ii) your use of the Site or Services, (iii) your violation of these Terms of Use, (iv) your violation of any rights of any other person or entity, or (v) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services.

COPYRIGHT VIOLATIONS

We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Site or Services;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law; and
  • a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorised to act on the copyright owner's behalf.

ELECTRONIC COMMUNICATIONS

We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non- waivable rights. You may also receive a copy of these Terms of Use by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided, or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.

NOTICE VIOLATIONS

We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to legal@amidata.com.au or as otherwise expressly provided. Please report any violations of these Terms of Use to legal@amidata.com.au.

RECOVERY SERVICES

These Terms of Service (collectively, the “Terms”) are a binding contract between me and Amidata Ltd. (“Amidata”). I understand and agree that by signing up for this service I acknowledge my agreement to be bound by these Terms. I understand that if I do not agree with these Terms, Amidata is not willing to provide the Recovery Service described below. After signing these Terms and paying all required I permit Amidata to access such Backup and view any and all files, in either an encrypted or unencrypted format, contained within such Backup. I acknowledge and agree that Amidata may be required by law to report and, if so required will report, any illegal material that it finds in my Backup or is able to restore as part of the Recovery Services.

CERTIFICATIONS

I represent and warrant to Amidata that I am the billing owner of the Cloud Connect and 365 Protect subscriptions, and that I have all of the rights necessary to permit Amidata to access and restore my Backup and perform the Recovery Services detailed above. I further represent and warrant to Amidata that my Backup does not contain financial information, health records, or other personally identifiable data that is controlled under any export control laws, or is otherwise confidential and sensitive in nature and should not be transmitted in an unencrypted format, nor does it contain illegal files or data.

ACCEPTABLE USE

Amidata reserves the right, without limitation, to terminate your access to and use of the Recovery Services if, in our view, you use the Recovery Services for unintended purposes or your use interferes with the use and enjoyment of the Recovery Services by others.

 

RELEASE OF CLAIMS

For and in consideration of payment (if applicable) for the Recovery Services and other good and valuable consideration, the sufficiency of which is hereby acknowledged, I, on behalf of myself and my spouse, heirs, children, successors, current and former agents, representatives, executors, beneficiaries, administrators, trustees, attorneys and assigns, voluntarily release and discharge Amidata and its predecessors, successors, and current and former assigns, agents, officers, partners, members, directors, shareholders, employees, representatives, attorneys, affiliates, and any other related entities, and all persons acting by, through, under, or in concert with any of them (all of which are referred to as “Releasees”), from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, causes of action, damages, losses, expenses, and debts of any nature whatsoever, known or unknown (“Claims”), which I have, claim to have, ever had, or ever claimed to have had against any of the Releasees through the date last written below, and any Claims which may arise in the future against any of the Releasees related to or as a result of Amidata’s performance of the Recovery Services. Further, I covenant not to commence or maintain any suit against Amidata or any of the Releasees in the future related to the Recovery Services, the recovery attempt of any files, lost profits, loss of data and backed up data, misuse or compromise of files, business interruption, or lost revenues, arising out of Amidata’s performance of the Recovery Services, even if such Recovery Services result in the loss or destruction of my files or any of my equipment and even if Amidata or any of the Releasees have been advised of the possibility of such damages (whether such damages arise in contract, tort (including, but not limited to, negligence or otherwise)). This covenant shall be binding upon, and inure to, the benefit of the parties, their successors, assigns, executors, administrators, personal representative and heirs.

DISCLAIMER OF WARRANTIES

THE RECOVERY SERVICES ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. AMIDATA DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE RECOVERY SERVICES AND THE ABILITY OF AMIDATA TO RESTORE ANY FILES. I UNDERSTAND AND AGREE THAT I AM SOLELY RESPONSIBLE FOR ANY DAMAGES TO THE EXTERNAL STORAGE DEVICE, AND ANY FILES CONTAINED THEREON. I ACKNOWLEDGE AND AGREE THAT RISK OF LOSS FOR ANY EXTERNAL STORAGE DEVICE, AND ALL DATA CONTAINED THERE, SHALL PASS TO ME UPON DELIVERY OF SUCH EXTERNAL STORAGE DEVICE TO ANY THIRD PARTY CARRIER. I UNDERSTAND THAT I ACCEPT ALL LIABILITY FOR LOSS OF ANY EXTERNAL STORAGE DEVICE INCLUDING, BUT NOT LIMITED TO, THE LOSS OF ANY DATA CONTAINED THEREIN, AT THE POINT AT WHICH AMIDATA PASSES THE EXTERNAL STORAGE DEVICE TO ANY THIRD PARTY CARRIER. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AMIDATA SHALL CREATE ANY ADDITIONAL AMIDATA WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF AMIDATA’S OBLIGATIONS HEREUNDER. I HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT I MAY HAVE AGAINST AMIDATA AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF AMIDATA’S PROVISION OF THE RECOVERY SERVICES. I AM SOLELY RESPONSIBLE AND LIABLE FOR THE FILES ON MY BACKUP OR EXTERNAL STORAGE DEVICE, INCLUDING, BUT NOT LIMITED TO, ANY FILES RECOVERED BY AMIDATA. I AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS AMIDATA AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SUPPLIERS AND LICENSORS FROM AND AGAINST ANY AND ALL LOSSES, COSTS, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING, BUT NOT LIMITED TO, LEGAL FEES, EXPERT FEES AND OUT-OF-POCKET EXPENSES) ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH AMIDATA’S PROVISION OF THE RECOVERY SERVICES, MY USE OF THE RECOVERY SERVICES, MY BREACH OF THESE TERMS, ANY DESTRUCTION OF OR DAMAGE TO MY FILES, ANY DAMAGE TO OR DESTRUCTION OF THE RECOVERY SERVICES OR OTHER EQUIPMENT, ANY DAMAGE TO THIRD PARTIES RESULTING FROM AMIDATA’S RESTORATION OF FILES, AND ANY CLAIM THAT AMIDATA INAPPROPRIATELY RESTORED FILES THAT ARE NOT OWNED BY ME. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL AMIDATA OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE TO ME OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR DATA, OR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA AND BACKED-UP DATA,

BUSINESS INTERRUPTION, OR LOST REVENUES OR PROFIT, ARISING OUT OF MY USE OR INABILITY TO USE THE RECOVERY SERVICES, AMIDATA’S PROVISION OF THE RECOVERY SERVICES, OR AMIDATA’S ABILITY OR INABILITY TO RESTORE FILES, DATA, OR MATERIALS FROM MY BACKUP, EVEN IF AMIDATA HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE)). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF AMIDATA AND ITS AFFILIATES, SUPPLIERS AND LICENSORS FOR ANY AND ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE FEES PAID BY ME TO AMIDATA FOR THE RECOVERY SERVICES. IF THE RECOVERY SERVICES ARE PROVIDED TO ME WITHOUT CHARGE, THEN AMIDATA SHALL HAVE NO LIABILITY TO ME WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES. I EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE RECOVERY SERVICES. I recognize that some jurisdictions do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the foregoing terms may not apply to me.

COMPLIANCE WITH OTHER AGREEMENTS

By signing these Terms, I represent and warrant that I have complied and will remain in compliance with all provisions of Amidata’s General Terms, which is available at http://www.amidata.com.au/public/companydocs/Amidata_-_General_Terms.pdf for reference.

 

ACKNOWLEDGEMENT

By signing up for backup services with Amidata, I acknowledge and agree that I have carefully read and understand these Terms, that I have consulted with, or had the opportunity to consult with, an attorney in connection with my execution of these Terms, and that I have not relied on any representation or statement made by Amidata or any other person with regard to the subject matter or effect of these Terms.

 

 

 

 

 


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