This agreement (the "Agreement") is a legal agreement between you, either an individual or a single legal entity ("You" or "you"), and IT Sales and Services PTY LTD ABN 16 131 808 270 (“IT Sales and Services”). IT Sales and Services is the provider of the Backup2Go Internet Backup and Remote Storage Service (“the Service”).
The Service offered herein provides you with software, a license key and storage space accessible via the Internet which allows you to store and recover your backups. The merchant payment processing facilities (“Merchant Facilities”) provides you with a number of payment options for the purpose of subscription to the Service. The Service and Merchant Facilities may be provided to you by IT Sales and Services using third party providers (all collectively referred to as "Service Providers").
To ensure that IT Sales and Services and the Service Providers are able to provide you with the best possible service, certain terms and conditions are imposed on the use of the Service. Please be advised that your access and continued use of the Service indicates your agreement to be bound by the terms and conditions herein, the terms and conditions of the Service Providers and any other terms that may be introduced from time to time. The terms set out herein are comprehensive and shall form the basis of your use of the Service.
1. Subscription to the Service
1.1 Subscriptions are configured through the Backup2Go Signup Page, or with the assistance of an authorised representative of IT Sales and Services.
1.2 You are required to pay the subscription fee in advance.
1.3 You will be required to provide contact details as part of the signup process for the Service, in order to enable us to provide you with notifications, Statements, Tax Invoices and other correspondence in relation to the Service.
1.4 Your nominated email address will be our primary method of providing you with confidential account information, as well as product status updates. It is your responsibility to ensure that the email address is kept secure, and that only authorised users have access to this email account.
1.5 You are responsible for maintaining the accuracy and validity of the information in your Backup2Go account. Failure to do so may result in the Service being terminated as per Clause 10 of this agreement.
1.6 You may cancel your subscription at any time , subject to the provisions within Clause 10 of this agreement.
2. Payments and Refunds
2.1 IT Sales and Services accepts payment via Direct Deposit into our nominated bank account, Cheque and Money Order. IT Sales and Services disclaims all responsibility and / or liability for any and all charges incurred by you as a result of making payment for the Service.
2.2 The Billing Period ("Billing Period") will commence from the date that the Service is activated by us ("the Activation Date"). Your Billing Period will begin from the day number of the Activation Date, and will end on the day before the same day number of the next month. Where a day number for the beginning or end of the Billing Month does not exist in a particular month, the day number will be defined by IT Sales and Services for that month, but revert back in the next month (E.g. 30/11/2007 to 29/12/2007, 30/12/2007 to 29/01/2008, 30/01/2008 to 29/02/2008, 01/03/2008 to 29/03/2008, 30/03/2008 to 29/04/2008, and so on).
2.3 The billing frequency ("Billing Frequency") is nominated during subscription, and can be paid in increments of one (1) Billing Period ("1 Month"), three (3) Billing Periods ("3 Months"), six (6) Billing Periods ("6 Months") and twelve (12) Billing Periods ("Annually"). The due date for payments ("the Renewal Date") will be defined by the Billing Frequency, relative to the Activation Date (e.g. If the Activation Date was 23/09/2007and the Billing Frequency was 3 Months, the Renewal Dates would be 23/12/2007, 23/03/2008, 23/06/2008, 23/09/2008 etc.).
2.4 You will be required to pay the subscription fee (“the Subscription Fee”) in full on or before the Renewal Date to enable you to access the Service.
2.5 Where the payment method is via Visa Card or MasterCard, the Subscription Fee will be deducted automatically by IT Sales and Services on the Activation Date, then on each Renewal Date until the Subscription is cancelled by you or IT Sales and Services.
2.6 Where the payment method is via Direct Deposit, Cheque or Money Order, payment must be made manually by you. The Subscription Fee will be payable on or before the Billing Date. Failure to pay prior to or on the Renewal Date may result in your account being suspended or terminated pursuant to Clause 10 of this agreement.
2.7 You are liable for the reimbursement in full of any fees and / or charges incurred by IT Sales and Services, which arise as a result of unsuccessful processing of your payment.
2.8 The Subscription Fee is payable in full for the Billing Period or any part thereof. The Subscription Fee for any unused portion of the Service within the current Billing Period will be non-refundable and non-transferable.
2.9 A refund may be given at the sole discretion of IT Sales and Services in complete unused Billing Period (month) units subject to the terms of Clause 10 of this agreement. Any portion of fees for the current Billing Period will be forfeited.
2.10 If you do not wish to continue the Service with IT Sales and Services, or do not wish to renew your account, it is your responsibility to cancel your account prior to your Renewal Date to avoid further charges.
3. Provision of Service
3.1 IT Sales and Services provides you with the Service, using a combination of our backup client software (“the Software”) and our secure data storage servers (“the Data Servers”).
3.2 Use of the Software and the Data Servers is subject to these Terms and Conditions. This is included in the installation portion of the Software, and installing the Software indicates your acceptance of these Terms and Conditions. If you do not agree to these Terms and Conditions, do not install the software on your computer.
3.3 The Service is available to residents of Australia only.
Use of this Service is subject to all applicable local, state, national, and international laws relating to the Internet. You agree:
(i) To comply with all such laws relating to the transmission and storage of technical data through the Service and the Internet;
(ii) Not to use the Service for illegal purposes;
(iii) Not to interfere with or disrupt networks connected to the Service;
(iv) To comply with all regulations, policies and procedures of networks connected to the Service;
(v) To abide by all Internet regulations, policies and procedures;
(vi) Not to transmit or store via the Service any unlawful, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind or nature; and
(vii) Not to interfere with anyone else's use of the Service or any other similar service.
(vii) Not to use the Service within the United States of America or Canada.
5.1 After you subscribe to the Service, payment will be processed and your account will be set up by a member of the IT Sales and Services team. Once this has been completed, you will receive a confirmation email which contains a valid username, password and instructions for downloading and installing the Software. The email address you have registered with your account will be your username.
5.2 During the Software installation process you will be asked to provide your username and password. If you have created a password previously, you will need to provide your existing password to access your Account otherwise the IT Sales and Services team will provide a password to you for any newly established accounts for which this password can be changed at any time by You the customer.
5.3 You are solely responsible for your account, email address and password and for any authorised or unauthorised use made of your password. You are also solely responsible for activity in your account and will not use or permit anyone to use the Service, to guess passwords or to access other systems or networks without authorisation. You may change your password at your convenience. The Service Providers shall not be responsible for the deletion or failure to store any data/files in your account.
Pursuant to the Privacy Act 1988, Commonwealth of Australia, IT Sales and Services makes the following assertions:
6.1 Contact Details - We collect personal details from our clients, such as names, addresses, phone, fax, mobile, email addresses. This information is stored in a database.
6.2 Credit Card Details - All financial details, such as credit card details are printed from a secure server, then deleted. The records are then stored securely offline in hard copy format.
6.3 Email Addresses - We collect your email address for the purpose of managing your account. Email addresses may be stored on our internal systems, and shared with the Service Providers for the specific purpose of provision of the Service. Your email address will not be disclosed to any other parties without the express written permission of the owner of the email address, except where required to by law. The email address will be used to contact the customer to provide service alerts, subscription information, and other correspondence necessary to facilitate effective communications.
6.4 Website Statistics - When you visit our web site, information will be recorded by our Internet Service Provider (ISP) for statistical purposes. No attempt will be made to identify you or your browsing activities from these records except in the unlikely event of an investigation by the ISP, or where a law enforcement agency exercises a warrant to inspect the Internet Service Provider's logs.
6.5 IT Sales and Services takes all reasonable steps to protect the security of the personal information held, be it stored in electronic or hard copy format.
6.7 IT Sales and Services will ensure that your information and data is kept secure and protected from unauthorised access or improper use, which includes taking all reasonable steps to verify your identity before granting access.
6.8 IT Sales and Services will use the details provided by you, as well as your Order Reference allocated to you in the Signup process as sources of identification. If for any reason that address becomes invalid or you cannot use the email address, your details will need to be updated by you as soon as possible.
6.9 Data will not be merged, transferred or passed on to any other user except for the authorised account holder of the Service.
7. Modification to Service/Terms
7.1 IT Sales and Services and / or the Service Providers reserve the right to modify or discontinue the service. You will be notified of this by email or by any other means IT Sales and Services and / or the Service Providers choose. Under no circumstances will IT Sales and Services and / or the Service Providers be liable to you in any way by such modifications or discontinuation of the Service.
7.2 IT Sales and Services and / or the Service Providers reserve their right to change the Service, or any part of it, and the terms and conditions herein at any time.
8. Exclusion and Limitation of Liability
8.1 IT Sales and Services and the Service Providers make no warranties that:
(i) the Service will meet your requirement;
(ii) the Service will be fit for your purpose; or
(iii) data stored or retrieved via the Service will be uncorrupted and retrievable in full.
You use the service solely at your risk and IT Sales and Services and the Service Providers shall not be liable for any loss or unavailability of data or damage to your computer.
8.2 You acknowledge and accept that:
(i) IT Sales and Services and the Service Providers are not responsible for the content, materials and information which are distributed, stored or accessed via the Service;
(ii) IT Sales and Services and the Service Providers do not review, censor or edit the material which is distributed, stored or accessed via the Service;
(iii) IT Sales and Services and the Service Providers do not develop or publish any of the content, materials and information that is distributed, stored or accessed via the Service;
(iv) The provision of the Service herein relies on the Internet and IT Sales and Services and the Service Providers have no control over connections to and from the Internet. Consequently, IT Sales and Services and the Service Providers make no guarantee that the provision of the Service will be uninterrupted or that you will be able to properly access or use the Service or that the Service will be provided without error; and
(v) The provision of Service herein is dependant on the restrictions and regulations imposed by the countries in which the servers reside and IT Sales and Services and the Service Providers are obliged to comply with all such restrictions and regulations.
8.3 It is your sole and absolute responsibility to comply with any and all laws and regulations relating to the use and dissemination of all content, materials and information which is distributed, stored or accessed via the Service. IT Sales and Services and the Service Providers accept no responsibility for the contents of the materials and information published by others that are distributed, stored or accessed via the Service and does not accept responsibility for the violation of any laws resulting from such publication.
8.4 To the extent permitted by law, the service providers make no warranties or representations of any kind, whether express or implied, as to any portion of the service or as to any support services. You accept the service on an "as is" basis and are deemed to have conducted suitability checks of your own.
8.5 To the extent permitted by law, IT Sales and Services and the service providers disclaim all express and implied warranties, oral or written, including but not limited to, implied warranties of merchantability, non infringement, fitness for a particular purpose and any warranties arising from course of dealing, course of performance or usage of the trade.
8.6 Even if advised of the possibility of such damage, the service providers shall not be liable to you for any indirect, incidental, consequential, special or exemplary damages of any kind (including but not limited to loss of use, interruption of business, lost profits, lost revenue or lost data) arising from the use or discontinuation of the service.
You agree to indemnify and hold IT Sales and Services and the Service Providers, their parent, subsidiaries, affiliates, officers, and employees, harmless against any claim or demand, including reasonable attorney fees, made by any third party due to or arising out of:
(i) your use of the Service;
(ii) your violation of the terms and conditions herein;
(iii) your infringement of any intellectual property or other right of any person
10. Suspension or Termination of the Service
10.1 You may cancel your subscription at any time by notifying us in writing through the Contact Us section of the Support page. If it is your intention to modify your subscription, please notify us via the Contact Us section of the Support page for detailed instructions. If you do not do this, your account may be terminated and your data deleted.
10.2 Your subscription may be cancelled by IT Sales and Services if your payment method is unable to be processed, or if payment is not received by the Renewal Date.
10.3 Upon cancellation of your subscription, the Service will be suspended for a period of up to (7) days. During this time you may be allowed to download any data in your account, however you will be unable to backup any data .
10.4 The Service will be terminated within (7) days of the cancellation, unless you re-subscribe to the same plan or higher within the suspension period.
10.5 IT Sales and Services and the Service Providers shall be entitled to forthwith terminate this Agreement if you breach any of the terms and conditions herein and shall have no further liability to you.
10.6 Upon termination:
(i) your right to use the Service and any software provided therewith immediately ceases; and
(ii) all data stored in your account shall be deleted.
10.7 Clauses 8 and 9 herein shall survive termination.
11.1 All notices required to be given shall be given via email. IT Sales and Services and / or the Service Providers shall have the right to choose instead to broadcast or post notices through its Service website and this shall be deemed effective notice to you.
11.2 All information and content including, but not limited to, text, software, movie, sound, photographs, video, graphics or other materials found or presented on the Service website, whether belonging to IT Sales and Services, Service Providers or to advertisers and promoters, is protected by copyright, trademark, service marks, patents or other proprietary rights and laws. You shall not use, copy, reproduce, distribute or create derivative works from such content without being expressly authorised to do so by IT Sales and Services and / or the Service Providers or the advertiser.
11.3 The terms and conditions herein are governed by, and to be construed in accordance with, the laws of New South Wales and parties submit to the exclusive jurisdiction of the Courts of New South Wales.
11.4 If any term or condition herein is held by a court of competent jurisdiction to be contrary to law or unenforceable, then such term or condition may be removed without affecting the remaining terms and conditions, which shall remain in full force and effect.
11.5 Any failure on the part of IT Sales and Services and / or the Service Providers to exercise or enforce any right herein shall not constitute a waiver of such right.