Amidata General Terms
Amidata Cloud Connect & 365 Protect Terms & Conditions
OFFSITE DATA BACKUP AND RECOVERY SERVICES
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.
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
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.
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.
MODIFICATIONS TO THE SERVICES
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
DURATION OF ACCESS
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
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.
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.
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.
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.
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.
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.