Armabackup is a company that provides data backup services (the “Service”). These Terms apply to Your use of the Service. We reserve the right, at our discretion, to modify these Terms, which modification will be effective 10 days following the posting of the modification to the Armabackup.com website and will apply to causes of action arising after the effective date of the change. We will inform You regarding such modifications by posting such latest changes on the Armabackup.com website. You should continue checking the Armabackup.com website for changes. If You have subscribed to the Service or otherwise provided us with Your email address, we may also notify You of changes to these Terms via email. Your continued use of the Service, as applicable, 10 days following the posting of changes to these Terms will mean You accept those changes.
1. APPLICATION OF TERMS
1.1 These Terms apply to Your use of the Service (as that term is defined below). By accessing and using the Service:
b) where Your access and use is on behalf of another person (e.g. a company), You confirm that You are authorized to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
1.2 If You do not agree to these Terms, you are not authorized to access and use the Service, and You must immediately stop doing so.
2. THE SERVICE
In order to use the Service, You must create a user account and then select the data which You wish to backup (the “Data”). The Service will then back up the Data on a regular basis and store it in an online storage space provided by (i) Armabackup’s third party storage provider (currently Wasabi Storage); (ii) by Your own internal storage; or (iii) by any S3 compatible storage services of Your choice (collectively, the “Storage Providers”). Once the backup process is completed, You will be able to monitor and restore the Data using the Service.
3. PROVISION OF THE SERVICE
3.1 We must use reasonable efforts to provide the Service:
a) in accordance with these Terms and New Zealand law;
b) exercising reasonable care, skill and diligence; and
c) using suitably skilled, experienced and qualified personnel.
3.2 Subject to clause 3.3, We must use reasonable efforts to ensure the Service is available on a 24/7 basis. However, it is possible that on occasion the Service may be unavailable to permit maintenance, hot fixes, patches or other activity to take place, or in the event of Force Majeure.
3.3 Through the use of web services and API’s, the Service interoperates with a range of third party service features including, but not limited, to the Storage Providers. We do not make any warranty or representation on the availability of those features.
4. YOUR OBLIGATIONS
4.1 You and Your personnel must:
a) use the Service in accordance with these Terms solely for:
i) Your own internal business purposes; and
ii) lawful purposes; and
b) not resell or make available the Service to any third party, or otherwise commercially exploit the Service.
c) not share Your access to the Service with any third party, except with our prior consent.
4.2 When accessing the Service, You and Your personnel must:
a) not impersonate another person or misrepresent authorization to act on behalf of others or Armabackup;
b) correctly identify the sender of all electronic transmissions;
c) not attempt to undermine the security or integrity of the Service in any way;
d) not use, or misuse, the Service in any way which may impair the functionality of the Service or impair the ability of any other user to use the Service;
e) report any security related matters immediately to the Armabackup team through email to firstname.lastname@example.org and telephoning the support number listed on the Website.
f) not use the Service in a manner, nor transmit, input or store any Data, which breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, incorrect or misleading.
g) administer Your users accounts including ensuring only appropriate access is granted and accounts are removed when no longer required.
h) ensure the configuration settings and method of use align to your security policy requirements, including password and other settings
4.3 A breach of any of these Terms by Your personnel is deemed to be a breach of these Terms by You.
4.4 You are responsible for procuring all licenses, authorizations and consents required for You and Your personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.
5.1 The Fees are payable in arrears, as follows:
a) For a monthly subscription: at the beginning of each calendar month with respect to the Data that has been backed up in the previous calendar month.
5.2 Fees do not include any taxes and You will bear the cost of any applicable tax.
5.3 You must pay the Fees:
a) by the 10th of the month following the date of invoice; and
b) electronically in cleared funds without any set-off or deduction.
5.4 We may increase the Fees by giving at least 30 days’ notice. If You do not wish to pay the increased Fees, You may terminate these Terms and Your right to access and use the Service on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If You do not terminate these Terms and your right to access and use the Service in accordance with this clause, you are deemed to have accepted the increased Fees.
5.5 Unless Your account is properly terminated, We will automatically continue to back up Your Data on a monthly basis. For clarity, if You terminate Your account before the end of a certain month, You will be charged fees for the entirety of that month.
5.6 Armabackup’s billing system is not error free and We will not be liable for any miscalculations or malfunctions in processing any Fees. If You think that a mistake has occurred, You must send Your complaint to accounts@Armabackup.com within 30 days of Your discovery of such mistake.
6. TERMINATON OF THE SERVICE
6.1 If at any time You wish to discontinue using the Service, You may cancel Your account by emailing email@example.com.
6.2 Without limiting any other right or remedy available to Armabackup, We may restrict or suspend Your access to and use of the Service and delete Your Data if We consider that You or any of Your personnel have:
a) undermined, or attempted to undermine, the security or integrity of the Service or any underlying systems;
b) undermined, or attempted to undermine, the reputation of Armabackup in any way at all;
c) used, or attempted to use, the Service:
i) for improper purposes; or
ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
d) transmitted, inputted or stored any Data that breaches or may breach these Terms or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
e) otherwise breached these Terms.
6.3 Upon termination of the Service, We will use reasonable commercial efforts to send notification of such termination to the email address You provided to us, informing You that Your access to the Service will be discontinued, and Your Data will be deleted after 30 days without a recovery option.
6.4 It is Your responsibility to manage the removal of the Data in the event of a termination, and We will have no liability if You fail to receive the email or act in accordance with the email, or if Your Data is deleted.
6.5 Termination of these Terms does not affect either party’s rights or obligations that accrued before that termination.
6.6 No compensation is payable by Armabackup to You as a result of termination of these Terms and access to the Service and you will not be entitled to a refund of any Fees that You have already paid.
7. INTELLECTUAL PROPERTY
7.1 You represent that You are the sole owner of the Data and You retain all title, ownership rights and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Data.
7.2 We retain all title, ownership rights and intellectual property rights (including all copyrights, patents, trade secret rights and trademarks) in and to the Services. You agree to not dispute that ownership.
7.3 If You provide us with ideas, comments or suggestions relating to the Service or underlying systems (together feedback):
a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Armabackup; and
b) we may use or disclose the feedback for any purpose.
8.1 Each party must, unless it has the prior written consent of the other party:
a) keep confidential at all times the confidential information of the other party;
b) effect and maintain adequate security measures to safeguard the other party’s confidential information from unauthorized access or use; and
c) disclose the other party’s confidential information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s confidential information is aware of, and complies with, clauses 8.1a and 8.1b.
9. LIMITATION OF LIABILITY AND WARRANTY
NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE ARMABACKUP.COM WEBSITE (INCLUDING THE CONTENT AND ANY OTHER SERVICES PROVIDED THEREBY) AND THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANT-ABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WHILE WE MAKE REASONABLE EFFORTS TO ENSURE THAT THE SERVICES WILL FUNCTION AS CLAIMED, WE DO NOT GUARANTEE THAT THE SERVICE WILL BE FREE OF BUGS, SECURITY BREACHES, VIRUS ATTACKS AND THE LIKE, OR THAT IT WILL ALWAYS BE AVAILABLE. THE SERVICE WILL OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. IN ADDITION, YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO ITS USERS THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS, ETC. IF YOU SUBSCRIBE TO THE SERVICE, YOU AGREE AND ACKNOWLEDGE THAT ALTHOUGH WE USE REASONABLE COMMERCIAL EFFORTS TO MAKE THE SERVICE ACCURATE, SECURE AND RELIABLE, IT CANNOT AND DOES NOT WARRANT THAT THE SERVICE SHALL AT ALL TIME BE ACCURATE, COMPLETE, SECURE, RELIABLE, CURRENT, OR ERROR FREE.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTION WITH OTHER ARMABACKUP USERS. IF YOU HAVE A DISPUTE WITH ANY OTHER USER OF THE SERVICE, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE BETWEEN TWO OR MORE USERS, ARISING OUT OF THEIR USE OF THE SERVICE.
UNDER NO CIRCUMSTANCES SHALL ARMABACKUP, ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, ASSIGNS AND AGENTS BE LIABLE FOR ANY ACTUAL OR POTENTIAL DAMAGE THAT MAY BE CAUSED TO YOU AND/OR TO ANY THIRD PARTY INCLUDING WITHOUT LIMITATION, ANY LOSS OF MONEY, GOODWILL, REPUTATION, SPECIAL, INDIRECT, DIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA OR BREACH OF DATA SECURITY) THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION, TO THE EXTENT PERMITTED BY LAW YOU AGREE THAT ARMABACKUP’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES AND LOSSES ARISING FROM YOUR USE OF THE SERVICE SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE LESSER OF (A) AMOUNTS ACTUALLY PAID BY YOU TO ARMABACKUP FOR THE SERVICE DURING THE 12-MONTH PERIOD PRIOR TO YOUR BRINGING A CLAIM AND (B) $100 AND THAT, EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, THE LIABILITY FOR WHICH IS UNCAPPED, YOUR TOTAL LIABILITY TO ARMABACKUP FOR ANY CLAIM HEREUNDER WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY YOU TO ARMABACKUP FOR THE SERVICE DURING THE 12-MONTH PERIOD PRIOR TO ARMABACKUP BRINGING A CLAIM. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY.
THE ABOVE TERMS REGARDING WARRANTY AND LIMITATION OF LIABILITY APPLY WHETHER OR NOT ANY SERVICES PROVIDED UNDER THESE TERMS ARE FOR PAYMENT.
YOU AND ARMABACKUP AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
10.2 These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from Date of first Service access.
10.3 We reserve the right to discontinue or modify any aspect of the Service at any time.
10.5 If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
10.6 You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.
10.7 These Terms, and any rights and licenses granted hereunder may be assigned by Armabackup without restriction or notification to You.