termsandconditions

Digital Cache Pty Ltd Data Backup on Cloud Terms and Conditions

 

1. General

This Agreement is between You and Digital Cache Pty Ltd as Trustee for Chrysalis Family Trust ABN 39 567 473230 and governs the sale and use of the Site, Products and Services.

2. Licence
   1. Upon:
      1. selecting the ‘Accept’ option when purchasing the Product via the Site;
      2. payment of the license fee for the Product at the point of purchasing the licence for the Product; or
      3. upon downloading, installing or using the Product (whichever comes first),

You are granted a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to use the Product strictly in accordance with this Agreement (“Product Licence”).

1. If You do not agree to this Agreement, You must not install, use, or copy the Product.
2. Upon:
   1. selecting the ‘Accept’ option when purchasing the Services via the Site; or
   2. payment of the license fee for the Services at the point of purchasing the licence for the Services; or
   3. using the Services (whichever comes first),

You are granted a revocable, non-transferable, non-sub licensable, non-exclusive and limited licence to access and use the Services in accordance with this Agreement (“Service Licence”).

1. The Product Licence and Service Licence will be for the term applicable to the particular Product or Service as detailed on the Site, Invoice or otherwise notified to You prior to or at the point of Your order being accepted (Licence Term). The applicable Licence Term will expire automatically at the conclusion of the Licence Term, unless terminated earlier in accordance with this Agreement.
2. Each and any recurring subscription payment for Products or Services received by Digital Cache Pty Ltd will constitute an offer by You to enter into a new Product Licence or Service Licence on Digital Cache Pty Ltd’s then terms and conditions.

 

3. Delivery of Products and Services
   1. Delivery will occur via electronic means in the manner Digital Cache Pty Ltd deems appropriate in its sole discretion. This may include, without limitation, delivery by way of Digital Cache Pty Ltd making a download link available to You to download the Product to Your computer or similar device. You may also receive an activation key or similar product licence descriptor via a separate communication which may be required to active or use the Products. For the avoidance of doubt, delivery will be completed and the Digital Cache Pty Ltd’s obligations in respect thereof satisfied upon Digital Cache Pty Ltd making the Product available.
   2. You are responsible for all costs and expenses associated with downloading, installing, running, accessing or using the Site, Services and any Products You purchase, including, without limitation, any costs associated with computing hardware, maintenance, server and data storage and internet access.
4. License Conditions
   1. This Agreement entitles You to:
      1. install and use the Product on a single computer; or
      2. install and make an archival copy of the Product on a storage medium other than a hard drive, and may only be used for the reinstallation of the Product.
   2. This Agreement does not permit the installation of the Product:
      1. on more than one computer at any given time;
      2. on a system that allows shared use of applications;
      3. on a multi-user network; or
      4. on any configuration or system of computers that allow multiple users,

unless Digital Cache Pty Ltd has granted You have a License for each separate computer on which the Product is installed and run as specified on an invoice or at the point of sale if the Products were purchased on the Site.

1. You may not assign Your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer Your rights to the Products or Services.
2. You may not:
   1. share the Product Licence or Service Licence, with others;
   2. copy, install or use the Product on any system with more than one computer; or
   3. permit the use, copying or installation of the Product by more than one user or on more than one computer.

unless You hold multiple, validly, licensed copies.

You may not:

4. decompile, “reverse engineer”, disassemble, decompile, or otherwise attempt to derive the source code for the Product;
5. broadcast, transmit or otherwise display in a public forum or any venue not restricted to You, the Product or any part of the Product;
6. post the Product or part of the Product on any website;
7. use the Product for commercial purposes, including a service bureau;
8. modify the Product or create any derivative work of the Product or its accompanying documentation. Derivative works include but are not limited to translations;
9. alter any files or libraries in any portion of the Product; or
10. copy any part of the Product except to the extent that the licensed use inherently demands the creation of a temporary copy stored in the computer memory and not permanently affixed on storage medium.

5. Ownership

Digital Cache Pty Ltd or its subsidiaries, affiliates, and any applicable suppliers retain all rights, title and interest, including all copyright and intellectual property rights, in and to, the Product and the Site, including text, graphics, logos, button icons, images and all copies thereof..

6. Your Obligations
   1. While it is not Digital Cache Pty Ltd's intent to monitor Your online communications to the Site or Cloud when using the Services, Digital Cache Pty Ltd reserves the right to remove any content that we become aware of and determine to be harmful, illegal or in breach of copyright laws or privacy laws.
   2. You may not use the Services for any unlawful activity nor for any activities that breach any laws, infringe a third party’s rights or are contrary to any relevant standards or codes.
   3. You are responsible for periodically testing that Your data stored on the Cloud is valid and uncorrupted. You are solely responsible for the selection of the information to be backed up on the Cloud, the scheduling of the backup operations, ensuring that successful backup has occurred and any costs payable to any third parties as a direct or indirect result of using the Services. This obligation also exists in instances where Digital Cache Pty Ltd technicians advise and setup software Product installations.
   4. You covenant and warrant that:
      1. all information and data provided by You to us (including billing and contact details provided as part of the customer registration process) or otherwise is true, accurate, complete and up to date;
      2. the person receiving, accessing or using the Services and Products is authorised by You to do so;
      3. You have and will comply with all relevant laws relating to Your use of the Site, Services and Products and Your placement of any order to us;
      4. You will ensure that any log in information and password that is used to access the Site, Services and Products and the details of Your account is kept in a safe and secure manner;
      5. You will promptly notify us if You are or become aware that there is or has been an unauthorised use of Your account, or any other security breach relating to Your account;
      6. You are responsible for any costs associated with Your access to or use of the Site and Services, including Internet access fees;
      7. You are responsible and liable for any person that uses Your user access details and/or password to order Products and Services through the Site;
      8. You agree that we may charge You for all Products and Services that we agree to supply to You that have been ordered by You or using Your account through the Site; and
   5. You must not tamper with or hinder the operation of the Site, Services or Products, nor transmit any viruses, worms, defects, trojan horses or similar disabling or malicious code to the Site or via the Services or Products;
   6. You must not take any action that imposes or that would, in our reasonable opinion, result in an unreasonable or disproportionately large load on our infrastructure;
   7. You and Your users must keep records of Your encrypting keys. You have the sole responsibility to make sure encrypting keys are kept in a safe and secure place. Digital Cache Pty Ltd shall not be liable for any damages (including damages for inability to restore backup data or the disclosure of confidential information) resulting from loss/corruption/compromise of these keys;
   8. You must not use the Site other than in accordance with this Agreement and conditions;
   9. Breach of this clause 6 may result in immediate termination or suspension of the Product Licence and Service Licence without liability to You.

 

7. Price and Costs
   1. Digital Cache Pty Ltd will invoice You for Products and Services supplied, or where purchased via the Site You will be provided with a receipt.
   2. The subscription price of the Products and Services is in Australian dollars and is inclusive of GST, or any other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Products and Services.
   3. Where You have purchased Products or Services not via the Site, You must pay invoices with 30 days of receipt or as otherwise directed by Digital Cache Pty Ltd.
   4. You must pay all amounts due to the Digital Cache Pty Ltd:
      1. without set-off, deductions counter-claims or conditions; and
      2. in available cleared funds.
   5. If You owe any amount to Digital Cache Pty Ltd, Digital Cache Pty Ltd may, in its sole discretion and without prejudice to any of its other rights, do one or more of the following:
      1. withhold all future supplies of Products and Services until that amount has been paid in full;
      2. set-off that amount against any amount owing by Digital Cache Pty Ltd to You; and/or
      3. immediately demand all amounts due and payable under this Agreement.
   6. If an amount due under this Agreement is paid after the due date You must pay Digital Cache Pty Ltd, in addition to the overdue amount:
      1. interest at the Default Rate calculated based on a 365 day year from the date of the default until the date the amount (together with all accrued interest) is paid in full; and
      2. all costs and expenses incurred by the Digital Cache Pty Ltd in collecting the overdue amount.
   7. Your obligation to pay an amount owing applies notwithstanding any delay in the delivery of the Services.

 

 

8. Warranties and exclusions
   1. Digital Cache Pty Ltd provides Products and Services "as is" and You agree that the existence of errors in the Products will not constitute a breach of this Agreement. Unless otherwise explicitly agreed to in writing by Digital Cache Pty Ltd, subject to the Implied Terms, all representations, guarantees, conditions and warranties of any nature are expressly excluded.
   2. Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligations on Digital Cache Pty Ltd and its subsidiaries, affiliates, and suppliers (“Implied Terms”). If these Implied Terms apply, Digital Cache Pty Ltd’s liability will be limited at its option to resupply, repair or replacement of the Product or Services, or the cost of such resupply, repair or replacement, to the extent permitted by law.
   3. Nothing in this clause excludes, restricts or modifies Your rights under an Implied Term.
   4. Digital Cache Pty Ltd does not warrant that its servers will be available at all times and will not be held liable for backup failure due to electrical faults, internet failure and other similar events.
9. Limitation of liability
   1. Subject to any Implied Term, and to the extent permitted by law, Digital Cache Pty Ltd or any of its officers, employees, contractors or agents will not be liable to You for any Losses incurred by You or Claims made by You as a result of using the Site, Services, Products and any documentation provided to You.
   2. Digital Cache Pty Ltd’s liability is reduced proportionately in the event that the You contributed to any Claim or Loss suffered by You.
10. Licensee indemnity

You will indemnify Digital Cache Pty Ltd, its directors, officers, employees, agents and contractors in full against any Claims or Losses as a result of or in connection with Your use of the Product and Services, including but not limited to, any modification by You of the Product which causes the Product to infringe the intellectual property rights of a third party.

11. Variation of Terms

Digital Cache Pty Ltd reserves the right to amend this Agreement from time to time. Such amendments will be either: (a) published on the Site from which the Products and Services were purchased; (b) notified to You via email directing You to a link; or (c) notified to You by post.

12. Termination
    1. Without prejudice to any other rights, Digital Cache Pty Ltd may terminate this Agreement immediately and without further notice if You fail to comply with this Agreement. In such event You must destroy all copies of the Product.
    2. Digital Cache Pty Ltd reserves the right at any time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice, in which event You shall be given a pro rata refund for that portion of the Services, Product Licence fee or Service Licence fee already paid for at the time of discontinuation and which cannot be used after discontinuation.
    3. The Product Licence will concurrently terminate when the Service Licence terminates.
    4. On termination, You must permanently remove and return or destroy all software Products from Your computers.
    5. You will provide Digital Cache Pty Ltd with at least one month written notice should You wish to change Your Services account in any way, including cancellation of the Digital Cache Pty Ltd Service.
    6. You agree that on any account cancellation of any Services, any backup data that exists on our servers will be removed in a timely fashion, and our obligations to provide recovery of any data ceases once Your account is cancelled.
    7. Upon cancellation of the Services, and where requested by You, Digital Cache Pty Ltd will copy any data on our servers which was uploaded via Your account to an encrypted hard drive or other media device. The media device will be dispatched to You upon final payment of the account, cost of the media device used, the courier charge and an administration fee equal to 1 month’s subscription charge.
    8. Recovery assistance is offered subject to availability, and under no circumstances will Digital Cache Pty Ltd guarantee provision of services for any recovery.
13. General provisions
    1. Any provision of, or the application of any provision of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
    2. Any provision of, or the application of any provision of this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
    3. The failure, delay, relaxation or indulgence by a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right, or remedy.
    4. This Agreement contains the entire Agreement between the Parties and supersedes any previous understandings, commitments or agreements, oral or written.
    5. If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
    6. This Agreement shall be governed by and construed in accordance with the laws of Queensland.
14. Definitions and interpretation
    1. Definitions

In this Agreement unless the context otherwise requires:

Agreement means this agreement, all schedules and, if the Products or Services were not purchased on the Site, the Invoice;

Claim includes any claim, including a notice, demand, debt, account, action, expense, damage, loss, cost, lien, liability, proceeding, litigation (including reasonable legal costs), investigation or judgment of any nature, whether known or unknown;

Cloud means the Digital Cache Pty Ltd hosted backup server storing Your data;

Default Rate means 10% per annum, or the maximum rate allowed by applicable law, whichever is lower;

Invoice means an invoice issued by Digital Cache Pty Ltd to You where You have purchased Products or Services not from the Site;

Loss means any damage, loss, liability, expense or cost;

Product means the products as detailed on the Site;

Service means the Cloud services provided by Digital Cache Pty Ltd as detailed on the Site;

Site means any Digital Cache Pty Ltd web-site; and

You means the person named in the invoice, or where the Products are purchased via the Site, the person who has purchased the Products or Services.

1. Interpretation

In this Agreement unless the context otherwise requires:

1. the singular includes the plural and vice versa;
2. where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
3. a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
4. a reference to any thing is a reference to the whole and each part of it;
5. a reference to a group of persons is a reference to all of them collectively and to each of them individually; and
6. a reference to a document includes all amendments or supplements to, or replacements or novation of, that document.

I agree:   \