TERMS OF SERVICE
The following sets out the terms and conditions between you (“the Customer”), and Test My Backups Pty Ltd ABN 65 622 417 449 (“The Company” or ”TMB”), for the provision of agreed services.
Description of the Service
To provide an array of services for managed backup services, Disaster Recovery and Business Continuity.
1.1 The following definitions apply:
(a) Agreement means the agreement for the provision of the Services by The Company to you comprising this document, and the Application Form.
(b) Carrier means a telecommunications carrier licensed under the Telecommunications Act 1997 (Cth) as a general carrier or a public mobile telecommunications carrier.
(c) Charges means the charges calculated for your usages of the Services at the rates specified in Section 3 (Pricing) of your Application Form, as amended from time to time in accordance with Clause 4.4 of this Agreement.
(d) Commencement Date means the date you signed your Application Form or purchased your service online
(e) Current Service Provider means a Carrier, telecommunications service provider, or equipment supplier who supplies telecommunications services or equipment to you at the time that you enter into this Agreement.
(f) Services means the Services detailed in Section 2 (Service Details) of your Application Form.
(g) Supplier means a Carrier or other third party upon whom The Company relies in order to provide the Services to you (whether or not The Company has a contractual relationship with that party).
(h) Termination Date means the date determined in accordance with Clause 7.
2. Obligations of the parties
2.1 The Company shall:
(a) provide the Services to you in accordance with its then current practices and procedures, including any practices and procedures stipulated by its Suppliers. The Company may from time to time vary its practices and procedures and the manner in which it provides the Services.
(b) provide the Services to the extent, and to the standard and in accordance with the terms and conditions upon which its Suppliers provide those services to The Company. Accordingly, The Company provides no warranty, makes no representation and is not liable for the quality, reliability, timeliness or availability of the Services.
(a) warrant that your use of the Services will not breach any law or regulation, or infringe any person’s rights, or otherwise cause loss, liability, or expense to The Company or any of its
(b) must obtain and comply with all permits, licences, laws, regulation and by-laws applicable to your use of the Services;
(c) must comply with all terms and conditions of this Agreement, including without limitation, payment of all Charges on or before the due date for payment;
(d) authorise The Company to conduct a credit assessment in accordance with clause 3 of this Agreement; and
(e) authorise The Company to provide to any of its Suppliers, or any of the related bodies corporate (as that term is defined in the Corporations Act 2001) of The Company or any of its Suppliers, such information about you and your Services as the Supplier or related body corporate requires in order for The Company to provide the Services to you under this Agreement.
3. Credit check
3.1 Prior to connection of your Services, The Company will conduct a credit assessment. You agree to provide to The Company and authorise The Company to obtain from third parties, all information necessary to complete this assessment, including but not limited to:
(a) a credit report about your credit history from a credit reporting agency;
(b) information from any credit provider named in a credit report in relation to your credit rating including and without limitation, any information about your credit worthiness, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act; and
(c) information from third parties concerning your financial standing and, for this purpose, you have authorised and permitted such third parties to supply such information regardless of any confidentiality or privilege, which applies, as between you and the third party, to the information sought.
4. Charges, Fees and Payments
4.1 You agree to pay to The Company all Charges for the Services, from the Commencement Date up to and including the Termination Date, irrespective of whether those charges are invoiced prior to, on or after the Termination Date.
4.2 The Company and its Suppliers shall review the Charges on a regular basis and will provide you with not less than 30 days written notice of any increase to those Charges. The altered Charges shall apply to all Services delivered on and after the applicable date that the notice period expires.
4.3 All Plans and Services are charged monthly in advance and are for a minimum of 12 months subscription. The 12 month subscription will automatically roll over for an additional 12 months on the anniversary date (the date which you joined and your first months service was charged).
4.4 The date of the month that you joined will be the date you will be billed each month (as an example, if you joined on January 17th, you will charged on the 17th of each month thereafter). If The Company is unable to charge your credit or debit card, The company reserves the right to withhold or terminate your services which could result in your data being permanently deleted.
4.5 The early termination fee payout for plans or service is the plan amount multiplied by the remaining months to the anniversary date. Written notice of termination is required 30 days prior to the next anniversary date.
4.6The Services are available under subscription plans of various durations. Payments for subscription plans can be made only by Credit Card. Your subscription will be automatically renewed at the end of each subscription period unless you inform us that you do not wish to renew the subscription 30 days before your anniversary date.
4.7 At the time of the automatic monthly charge each month the Credit Card last used by you will be charged. We provide you the option of changing the details if you would like the payment for the renewal to be made through a different Credit Card.
4.8 From time to time, we may change the price of any Service or charge for use of Services that are currently available free of charge. Any increase in charges will not apply until the expiry of your then current billing cycle. You will not be charged for using any Service unless you have opted for a paid subscription plan.
4.9 Each time you use The Company Services, or allow or cause The Company Service to be used, you agree and reaffirm that The Company is authorized to charge your designated card or obtain payment for the Services through such other means as are legally available to The Company.
5. Suspension of Services
5.1 The Company or one or more of its Suppliers may at any time unilaterally bar or suspend one or more of your Services if:
(a) you fail to pay an invoice by the due date;
(b) The Company has a right to terminate this Agreement pursuant to clause 9.3;
(c) instructed to do so by a governmental, regulatory or law enforcement body;
(d) you fail to obtain and/or comply with any permits, licences or other authorisations that are required for the use of the Services; or
(e) you fail to comply with any law or regulation applicable to your use of the Services, including, but not limited to, data protection and telecommunications laws and regulations.
6. Term and Termination
6.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with this Clause 7.
6.2 Subject to Clause 7.3, either party may terminate this Agreement at any time by providing the other party with 30 calendar days prior written notice. This Agreement will terminate on expiry of the 30 calendar days’ notice.
6.3 If your agreement with The Company specifies a fixed contract period, any termination notice given by you pursuant to Clause 7.2 shall not expire until the last day of the fixed contract period. Notwithstanding the foregoing, if you wish to terminate this Agreement prior to expiry of the fixed contract period then you may do so by providing 30 days prior written to The Company together with payment of an early termination fee equal to $250 plus the average monthly invoice total multiplied by the number of months from your last invoice until the last day of the fixed contract period plus all Charges specified in Clause 7.6.
6.4 In addition to any other rights expressly set out in this Agreement, either party may terminate this Agreement:
(a) if the other party commits a breach of its obligations and, if remediable, fails to remedy the breach within 14 days after receiving written notice from the other party requiring it to remedy the breach; or
(b) immediately if the other party becomes insolvent, bankrupt or if its financial position is such that, within the framework of applicable national law, legal action leading toward appointment of receiver or administrator, winding up, bankruptcy or dissolution may be or has been taken.
6.5 Notwithstanding any other provision of this Agreement, The Company may terminate this Agreement (or where appropriate in respect of any Service or Services):
(a) if The Company ceases or intends to cease to operate the Services for any reason, by giving you at 60 days prior written notice; or
(b) immediately upon written notice if, as the result of an act or omission of one or more of its Suppliers, The Company is unable to continue to supply the Services to you to the standard of service it provides in the normal course of its business.
6.6 In the event of termination, all Charges due and payable in accordance with Clause 4, up to and including the Termination Date, shall become immediately due and payable by you together with any interest accrued in accordance with the terms of this Agreement.
7. Personal information
7.2 Without limiting the foregoing, you agree that The Company may disclose any personal information referred to in clause 8.1 to its Suppliers, partners and each of its and their respective related bodies corporate to the extent necessary to enable The Company to provide the Services to you in accordance with the terms of this Agreement.
8. Exclusion of Warranties
8.1 Nothing in this Agreement shall exclude or limit the warranties or liability of The Company or its related bodies corporate for losses which may not be lawfully excluded or limited by applicable law. In the event that an exclusion or limitation of liability is illegal, invalid or unenforceable in your jurisdiction then clause 13.5 (severability) shall apply.
8.2 The Company expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement of third party rights, or warranties arising by statue or otherwise in law or from a course of dealing or usage of trade. In particular, but without limitation, The Company and its related bodies corporate do not represent or warrant that: (a) your use of the Services will meet your requirements; (b) your use of the Services will be uninterrupted, timely, secure, failsafe or free from error; (c) defects in the operation of the Services will be corrected; (d) the Suppliers will continue to supply the Services to The Company on the terms and conditions set out in this Agreement.
8.3 No advice, information or representation, whether oral or written, obtained by you from The Company or any of its related bodies corporate or any other person shall create any warranty not expressly stated in this Agreement.
8.4 The liability of The Company and its related bodies corporate for any breach of any condition, warranty or other obligation which is implied into this Agreement by any applicable legislation for the time being in force which cannot be excluded by agreement, shall not exceed, at The Company’s option: (a) in the case of the supply of goods: (i) the replacement of the goods or the supply of equivalent goods; or (ii) the repair of the goods; or (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or (b) in the case of the supply of services: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
9. Exclusion and Limitation of Liability
9.1 You expressly agree that use of the Services is at your risk. To the full extent allowed by law, our liability for breach of any term implied into these terms and conditions by any law is excluded.
9.2 All information, specifications and samples provided by us in relation to the Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect your use of the Goods or Services will not entitle you to reject the Goods upon delivery, or to make any claim in respect of them.
9.3 We give no warranty in relation to the Services provided or supplied. Under no circumstances are we or any of its suppliers liable or responsible in any way to you or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:
9.4 Under no circumstances shall The Company or any of its related bodies corporate or Suppliers be liable to you or any third party for any indirect, incidental, consequential, special, exemplary, or punitive damages or lost profit, revenue, goodwill, anticipated savings or lost or corrupt data, information or other content, or damage to property arising from or related to the Services, whether such claim is based on warranty, contract, tort (including negligence), statute or otherwise, (even if The Company or any of its related bodies corporate or Suppliers has been advised of or should have been aware of the possibility of such damages).
9.5 Without limiting the foregoing, the total aggregate liability of The Company and its related bodies corporate and Suppliers arising from or related to this Agreement, whether such claim is based on warranty, contract, tort (including negligence), statute or otherwise (even if The Company or any of its related bodies corporate or Suppliers has been advised of or should have been aware of the possibility of such damages) shall not exceed the lesser of the amount paid by you to The Company for the Services in the six months prior to the date on which the alleged loss or damage was suffered by you or any person claiming through you.
9.6 The foregoing limitations of liability shall apply whether the damages arise from or in connection with use or misuse of or reliance on the Services, from inability to use the Services or from the unavailability, failure, delay, interruption, degradation, suspension, deactivation or termination of the Services (including any damages incurred by third parties).
9.7 You agree that The Company and its related bodies corporate and Suppliers shall not be liable to you or to any person claiming through you for any claim which is brought against The Company or any of its related bodies corporate or Suppliers later than 6 months from the date on which the alleged loss or damage was suffered by you or any person claiming through you.
9.8 Nothing in this Agreement is intended to exclude or limit the application of any provision of any statute (including the Australian Consumer Law and the Telecommunications Act) where to do so would: (a) contravene that statute; or (b) cause any part of this clause to be void.
10.1 You indemnify and keep indemnified us, our servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to you) against us or, for which we are liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Purchase Order or the subject matter of these terms and conditions
10.2This includes, but is not limited to, any legal costs incurred by us in relation to meeting any claim or demand or any party/party legal casts for which we are liable in connection with any such claim or demand.
10.3This provision remains in force after the termination of these terms and conditions
11. Force Majeure
11.1 For the purposes of this Agreement, a Force Majeure event means any act, event, cause or circumstance beyond the reasonable control of a party and without fault or negligence of that party, including but not limited to, fire, storm, flood, earthquake, adverse weather, accident, war, labour dispute, materials or labour shortage other than its own staff or staff under its control, power shortage, externally caused transmission or satellite launch failure or other satellite failure, delay or malfunction, breakdown or unavailability of third party plan, machinery or equipment or suspension or termination of a Supplier contract which is relevant to the provision of the Services, whether or not The Company is a party to that contract.
11.2 The Company will not be liable to you in any way by reason of any delays or failures by it to perform its obligations under this Agreement, where such delay or failure is caused by a Force Majeure event.
11.3 Where such delay or failure arising from a Force Majeure event exceeds 30 days, The Company may immediately terminate this Agreement by providing written notice to you.
Ay notice required to be given under this Agreement must be in writing in the English language addressed to the physical address or email address most recently notified by the recipient to the sender and will be taken to have been given or made, in the case of ordinary mail, 3 business days from the date on which it is sent or, in the case of email, on the date on which it is received in the recipient’s email account, but if received on a day which is not a business day it will be taken to have been received on the next business day; for the purposes of this clause, “business day” means a day on which banks are open for business in Sydney Australia.
13. Assignment and sub-contracting
The Company may with prior written notification to you, assign or novate its rights and obligations under this Agreement or any part of it or any money due under it to any of its related bodies corporate, Suppliers or Suppliers’ related bodies corporate, or with your consent, which shall not be unreasonably withheld, to any other third party. The Company may discharge its obligations under this Agreement using agents or sub-contractors but shall remain liable for their performance under this Agreement. Your rights and obligations under this Agreement are personal and cannot be transferred by operation of law.
a) We may display your company or business name, logo, images or other media as part of our Services and/or other marketing materials relating to our Website, except where you have explicitly requested that we do not do this and we have agreed to such a request in writing. You acknowledge that we may use your clients company name, the public description of your Projects and the content of your profile information and your clients company profile on our Website for marketing and other related purposes.
15 General Provisions
15.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Victoria, Australia, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
15.2 Entire Agreement. This Agreement, including your Application Form and any documents referred to in it (including those via a weblink) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Except as expressly provided in this Agreement, any amendment of this Agreement will be effective only if in writing and signed by both parties.
15.3 Survival. In the event of any termination, expiration, or cancellation, all terms of this Agreement which are capable of survival shall survive.
15.4 Waiver. A failure by a party to exercise, or a delay in exercising, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies which that party may otherwise have and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
15.5 Severability. Any provision of this Agreement which is illegal, invalid or unenforceable in any jurisdiction is to be read down so as to be legal, valid and enforceable if possible, or if that is not possible, will be ineffective in that jurisdiction only to the extent of the illegality, invalidity or unenforceability, without affecting the remaining provisions of this Agreement or the legality, validity or enforceability of that provision in any other jurisdiction.
15.6 Dispute Resolution. All disputes arising out of this Agreement will, unless The Company , in its absolute discretion, elects otherwise, be subject to the exclusive jurisdiction of the state and federal courts serving New South Wales, Australia, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
15.7 Costs of enforcement. You agree to reimburse The Company for any costs or fees related to its enforcement of this Agreement (including reasonable third party fees and disbursements in relation to the defence of any third party claims).
15.8 Benefit of the Agreement. This Agreement is binding upon and shall enure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. The Company holds all rights under this Agreement which are referable to its related bodies corporate, its Suppliers and its Suppliers’ related bodies corporate on trust for those entities and may enforce any of those rights on behalf of any of those entities.