Our Privacy and Terms of Use Policy
Our Terms of Use Policy
1. DEFINITIONS
"Acceptable Use Policy" means
Online Data Store’s Acceptable Use Policy available on the Website.
"Account" means an account set up by Online Data Store to allow
the Customer to utilise the Service.
"Business Days" means Monday through Friday, excluding public
holidays that fall on any of these days.
"Confidential Information" means the information set out in
Section 12 of these Terms and Conditions.
"Consumer Protection Legislation" means the Trade Practices
Act 1974 (Cth), as amended from time to time, or any other piece of
consumer protection legislation in Australia.
"Contact Details" means the information set out in Section 4 of
these Terms and Conditions.
"Customer" includes all officers, agents and representatives of
the Customer.
"Online Data Store" means Online Data Store and includes all
officers, agents and representatives of Online Data Store.
"Data Storage Limit(s)" means the data storage limit initially
agreed to by the Customer when signing up for the Service or one or more of the
data storage limits set out on the Website.
"Intellectual Property Rights" means all rights in or to any
patent, copyright, registered design or other design rights, utility model,
trademark (whether registered or not and including any rights in get up or trade
dress), brand name, services mark, trade name, eligible layout right, chip
topography and any other rights of a proprietary nature in or to the results of
intellectual activity in the industrial, commercial, scientific, literary or
artistic fields, whether registrable or not and wherever existing in the world,
including all renewals, extensions and revivals of, and all rights to apply for
any of the forgoing rights.
"Notice" means a notice in writing sent by Online Data Store to
the Customer in accordance with clause 6.13of these Terms and Conditions in the
event of non-payment of the Subscription Fee.
"Order" means an order for a Service placed via the Website by
the Customer.
"Payment" means payment by the Customer of the Subscription Fee
in accordance with clause 6 of these Terms and Conditions.
"Plan" means a Service plan listed on the Website.
"Privacy Policy" means Online Data Store’s Privacy Policy
available on the Website.
"Service" or "Services" means the data backup
services provided by Online Data Store in accordance with these Terms and
Conditions.
"Software" has the meaning given to it in Section 5 of these
Terms and Conditions."Subscription Fee/s" means the
subscription fee/s initially agreed to by the Customer when signing up for the
Service as set out on the Website.
2. CONDITION OF SUPPLY ACCEPTANCE OF CUSTOMER'S ORDER
2.1 These Terms and Conditions apply to every Order between Online Data Store and the Customer.
2.2 A contract is only concluded between Online Data Store and Customer for the supply of the Services when the Order has been accepted by Online Data Store.
3. TERM
3.1 The term for the provision of Services under an Order commences on the date the Order is accepted by Online Data Store and is continues in force until terminated in accordance with any of clauses 6.13, a), 7.8 or Section 10 of these Terms and Conditions.
4. PROVISION OF INFORMATION BY THE CUSTOMER
4.1
When placing an Order, the Customer must provide Online Data Store with the
Customer’s:
a) name or business name as the case may be;
b) ACN or ABN (if applicable);
c) representative who will be the primary contact for Online Data Store for
matters relating to this Agreement;
d) postal address;
e) telephone number(s);
f) facsimile number(s); and
g) email address(es).
(together the Contact Details)
4.2 The Customer undertakes to notify Online Data Store in writing of any changes to the Contact Details as soon as practicable after they are changed.
4.3 Online Data Store will only use the Contact Details in accordance with its Privacy Policy.
4.4 Online Data Store may contact the Customer using any of the Contact Details in relation to matters to do with the Customer’s account and other relevant matters related to Online Data Store and its business of providing the Service/s.
5. PROVISION OF SERVICES BY ONLINE DATA STORE
5.1 A summary and basic description of the Services are set out on the Website.
5.2 Online Data Store may provide the Customer with software for use in relation to the Service ("Software").
5.3 Online Data Store makes no warranty in relation to the Software and will not be liable for any damages or loss (including indirect or consequential loss) of any kind arising from the use of:
a)
the Software; or
b) Online Data Store’s storage of the Customer’s data (including where such
damage or loss is caused by negligence).
Online Data Store further makes no warranty (whether express or implied) in
relation to merchantability or fitness for a particular purpose in relation to
the Software.
c) no incorrect use, abuse or corruption of the Software by the Customer.
5.7 To the extent that Online Data Store has any liability to the Customer, such liability will be limited to the value of any Subscription Fees paid or payable to Online Data Store for the month in respect of which such liability arose.
5.8 The Software will be provided with a software licence, which the Customer must read and agree to before using the Software.
5.9 Software manuals are provided in PDF format only and without warranty of any kind.
5.10 The Software may be updated or changed at any time at Online Data Store’s sole discretion.
5.11 The Customer acknowledges that Online Data Store remains the sole owner of all Intellectual Property Rights in the Software. This ownership is absolute, worldwide and includes all Intellectual Property Rights arising from or in relation to any future Software.
5.12 The Customer shall not copy, alter, modify, reproduce, reverse assemble or reverse compile the Software in whole or part or permit another to do so without Online Data Store’s prior written consent.
5.13 Online Data Store shall not be liable for any indirect, special, incidental or consequential damages, loss of business, loss of profits, loss of backup data, or the like, whether based on breach of contract, tort (including negligence), product liability or otherwise, even if Online Data Store or its representatives have been advised of the possibility of such damages.
5.14 Recovery assistance is offered by Online Data Store on a 'good faith' basis, and under no circumstances does Online Data Store guarantee a minimum offering in the Service/s it offers, or provision of any recovery equipment.
5.15 Online Data Store does not warrant that the Service/s will always be uninterrupted or error free, that defects in the backup service will be corrected, or that the Software and/or Service/s is/are virus and/or harmful component-free.
5.16 There may be extended times of the Service being unavailable. In such circumstances, Online Data Store will endeavour to resolve these unavailability issues as soon as practicable, but does not warrant that its servers will be available at all times and will not be held responsible for backup failure due to electrical faults, internet failure or any other issues that contribute to or cause backup failure.
5.17 Data speeds are dependent on current network throughput and may vary due to network congestion and/or volume of traffic on the Online Data Store or carrier networks. Online Data Store does not warrant that any particular data speed will be available at any particular time.
5.18 Online Data Store is not responsible for the speed of data backup or restore.
5.19 Online Data Store is not responsible for the time taken for delivery of any files or hard drives through either network transfer or physical delivery via courier, postal service or any other method if provided by Online Data Store as part of the Service.
5.20
The Customer indemnifies Online Data Store against all and any demands, claims,
actions and proceedings whatsoever and howsoever arising in connection with and
arising out of:
a) the Customer’s use of the Software and the Services;
b) any data that is stored by Online Data Store under these Terms and
Conditions, including (without limitation) where such data infringes a third
party’s Intellectual Property Rights, or the data is any way contrary to law or
offensive to a third party; and
c) any breach of the Customer’s obligations under these Terms and Conditions.
5.21 All data files are transmitted over communication company networks, which are wholly beyond the control and jurisdiction of Online Data Store and are installed and maintained by the relevant communications company. If these networks are not functional for whatever reason the data backup may not work correctly or even reach the Online Data Store servers. Online Data Store cannot be held liable for the operation of these communication companies’ networks or the acts or omissions of officers, agents or representatives of these companies or any third parties.
5.22
Without limiting the matters for which the Customer is responsible, the
Customer, and not Online Data Store, is specifically responsible for the
following:
a) the selection of the information to be backed up on the Online Data Store
server;
b) the scheduling of the backup operations (which Online Data Store will
endeavour to comply with) and ensuring that successful backup has occurred;
c) the cost and maintenance of all computers, servers, telephones, Cables, ADSL
connections or other communication equipment required for data transmission,
system access and to otherwise enable the Customer to utilise the Service.
d) providing and maintaining a functioning Internet connection to enable it to
utilise the Service;
e) its Internet security and all related devices such as hardware and/or
software. Firewalls must be configured to communicate with the Online Data Store
Network. Any changes required to the Customer’s firewall configuration and other
blocking software is the Customer’s responsibility and Online Data Store cannot
be held liable for an incorrectly configured firewall or other software/device
blocking that prevents the backup data from reaching any of Online Data Store’s
networks or servers; and
f) possession of and knowledge of the content of the Customer’s encrypting keys.
The Customer has sole responsibility to make sure that its encrypting keys are
kept in a safe and secure place. Online Data Store shall not be held liable for
any indirect, special, incidental or consequential damages resulting from
loss/corruption/compromise of these encrypting keys.
6. PRICES, PAYMENT AND INVOICING
6.1 The Customer must pay the Subscription Fee (as initially agreed to by the Customer when placing and Order) in advance to enable access the Service.
6.2 The initial Subscription Fee and Data Storage Limit are agreed to by the Customer when placing an Order.
6.3 Payment of the Subscription Fee shall be by way of recurring monthly or yearly payment/payments.
6.4 Payment of the Subscription Fee through recurring monthly repayments must be made by credit card (VISA, Mastercard, American Express) or as direct debit or cheque.
6.5 The Customer warrants that it is duly authorised to use the credit card or bank account it uses to pay the Subscription Fee.
6.6 If the Customer elects to pay the Subscription Fee by American Express, the Customer will incur a transaction fee for each Payment of 3% of the total amount of that Payment.
6.7 If the Customer is located in a jurisdiction other than Australia, it may incur additional fees for credit card use or money conversion. The Customer is responsible for paying all such fees.
6.8 Any fees incurred by Online Data Store as a direct result of any one of the Customer’s Payments being declined (for whatever reason) will be charged to the Customer as an additional amount in the following month’s Subscription Fee unless otherwise agreed in writing between the Parties.
6.9 Recurring monthly Payments continue until a Service is terminated through operation of clauses 6.13, a), 7.8 or Section 10 of these Terms and Conditions.
6.10 Online Data Store will provide the Customer with a Tax Invoice within five (5) Business Days of each Payment made. Tax Invoices will be sent to the Customer in electronic form via the email address or hard copy to the postal address (as determined by Online Data Store) provided by the Customer in the Contact Details.
6.11 If a Service is terminated in accordance with clauses 6.13, a), 7.8 or Section 10 of these Terms and Conditions and the Customer has paid an annual Subscription Fee, Online Data Store will issue a refund for the remainder of the annual Subscription Fee paid by the Customer calculated pro rata from the first day of the month after the month in which the Service was terminated.
6.12 The Customer will bear any bank or merchant fees which may be charged in relation to Online Data Store’s refund of the annual Subscription Fee.
6.13
In the event that any Payment of any part of the Subscription Fee is not
received within five (5) Business Days from when it is due (for whatever
reason), Online Data Store may suspend and/or terminate the Customer’s Service
as follows:
a) Online Data Store must send a Notice in writing to the email address or the
postal address (as determined by Online Data Store) provided by the Customer in
the Contact Details:
i) detailing the nature of the non-payment,
ii) stating that the Customer’s Service is suspended,
iii) giving the Customer five (5) Business Days to pay the amount in the Notice;
and
iv) stating that the Customer’s Service will be cancelled if payment of the
amount is not made within those five (5) Business Days.
b) If Online Data Store does not receive payment from the Customer by the date
in the Notice then Online Data Store may cancel the Customer’s Service at its
sole discretion.
c) The Customer is liable to pay all reasonable costs incurred by Online Data
Store as a result of the Customer’s non-payment of the Subscription Fee.
d) If Online Data Store decides to terminate the Customer’s Service, any of the
Customer’s backup data held on Online Data Store’s servers will be permanently
removed as soon as practicable.
6.14 While the Customer’s Service is suspended, Online Data Store will not backup any of the Customer’s data and may not provide any part of the Service at its sole discretion.
7. CHANGES TO DATA STORAGE LIMITS, SUBSCRIPTION FEE AND CUSTOMER SERVICES
7.1 The initial Data Storage Limit provided by Online Data Store is the amount initially agreed to by the Customer when signing up for the Service and any usage exceeding the amount initially agreed to will be charged in accordance with the pricing structures set out on the Website (as may be amended from time to time).
7.2
The following will occur before the Customer’s Subscription Fee is increased:
a) the Online Data Store software will advise the Customer (via the email
address given in the Contact Details) when the Customer’s data storage space
reaches 80% of the limit initially agreed to by the Customer when signing up for
the Service. To prevent the backup from failing, when the backup quota reaches
98%, Online Data Store’s system will automatically upgrade the Customer’s Plan
to the next available Plan;
b) the Customer will be contacted via the email address given in the Contact
Details to advise that this upgrade has taken place and the amount of the
consequential increase in Subscription Fee;
c) the email will give the Customer ten (10) Business Days to reduce the size of
the Customer’s backup data and notify Online Data Store that the Customer does
not wish to accept the new Plan (if the Customer so chooses);
d) if the Customer fails to notify Online Data Store in accordance with clause
7.2c), this failure constitutes the Customer’s consent to the new Plan and
consequential price increase for the new Subscription Fee and Data Storage
Limit; and
e) upon any increase in the Customer’s Plan, the Customer will be notified via
the email address given in the Contact Details of the increase.
7.3 The increase in Subscription Fee will take effect as of the date that the Customer’s Plan is increased.
7.4 The Customer’s Payment in the following month will include both the Subscription Fee for the new Plan and the amount of the difference between the Customer’s Subscription Fee for its new Plan over its old Plan, calculated from the date that the Customer’s Plan is increased.
7.5 Customers who elect to pay their Subscription Fee via an annual Payment and who need to increase their Plan in accordance with this Section will be contacted by the email given in the Contact Details and can either choose to be invoiced for the difference between the Customer’s old Plan and the new Plan for the remaining term, or can choose to pay the difference on their credit card on a month-by-month basis.
7.6
Online Data Store may change Subscription Fees and/or Data Storage Limits from
time to time at its discretion in accordance with this Section.
a) Online Data Store will to change Subscription Fees and/or Data Storage Limit
automatically increase to the next plan to avoid backup failure.
7.7 Online Data Store may amend these Terms and Conditions from time to time at its discretion in accordance with clause 7.8.
7.8
If Online Data Store wishes to make changes to these Terms and Conditions, the
following procedure applies:
a) the Customer will be contacted in writing through the email address given in
the Contact Details and notified of the nature of the change/s these Terms and
Conditions;
b) if the Customer is unwilling to agree to the changes, the Customer may
terminate the Service upon giving ten (10) Business Days notice in writing to
Online Data Store.
c) failure by the Customer to notify Online Data Store in accordance with clause
7.8b), constitutes the consent to the changes to these Terms and Conditions; and
7.9
The Customer may downgrade its current Plan to a smaller Plan as currently
listed on the Website in the following circumstances:
a) the Customer’s current data storage is under the Data Storage Limit specified
in the smaller Plan the Customer wishes to change to; and
b) the Customer gives notice in writing to Online Data Store stating its request
to change Plans and the Plan it wishes to change to.
7.10 Where the Customer makes monthly Subscription Fee Payments and downgrades to a smaller Plan, Online Data Store will not refund any Subscription Fees already paid for the remaining period of the month in which the downgrade is requested is. The rate applicable to the new Plan will be charged to the Customer starting in the subsequent month to the change.
7.11 The Customer may upgrade to a larger Plan at any time, by notifying Online Data Store in writing. The increase in Subscription Fee will take effect as of the date that the Customer’s Plan is increased.
7.12 When the Customer upgrades to a larger Plan, the Customer’s Payment in the following month will include both the Subscription Fee for the new Plan and the amount of the difference between the Customer’s Subscription Fee for the new Plan over the old Plan, calculated from the date that the Customer’s Plan is increased.
8. WARRANTIES
8.1
In addition to any other of the Customer’s obligations under these Terms and
Conditions, the Customer expressly warrants that:
a) any representative who makes or places an Order on behalf of the Customer is
at least eighteen (18) years of age and has valid legal capacity to enter into
the Order for a Service and to perform all of the Customer's obligations and has
all of the requisite corporate power and authority to enter into the Order and
accept these Terms and Conditions and has authority to permit the installation
of equipment and systems described herein;
b) every officer, agent or representative of the Customer who uses the
Customer’s Service has read and agreed to the obligations in these Terms and
Conditions; and
c) it will not breach the Acceptable Use Policy.
9. DISPUTE RESOLUTION
9.1 Subject to Section 10, If either Online Data Store or the Customer believes an act or omission of the other party has caused it a grievance of any kind, it must give the other party written notice of the nature of this grievance as soon as practicable after the event giving rise to the grievance.
9.2 On receipt of this notice of grievance, the parties must seek to resolve the grievance within ten (10) Business Days of the event giving rise to the grievance.
9.3 If a grievance arises out of or relates to these Terms and Conditions, the parties expressly agree to mediate the dispute in good faith to be administered by the Australian Commercial Disputes Centre or such other similar entity as agreed by the parties in writing before having recourse to any other legal remedy.
9.4 Notwithstanding the above, nothing precludes Online Data Store from seeking urgent interlocutory relief to protect its Intellectual Property Rights or other valuable rights or interests in the event of any grievance.
10. SUSPENSION AND TERMINATION OF AGREEMENT
10.1
In addition to any other rights it may have, Online Data Store may suspend the
Customer’s Service if the Customer breaches any clause of these Terms and
Conditions and Online Data Store as follows:
a) Online Data Store sends a notice in writing to the Customer to the email
address given as part of the Contact Details, detailing the nature of the
breach, stating that the Customer’s account is suspended and giving the Customer
five (5) Business Days to rectify the breach detailed in the Notice to Online
Data Store’s satisfaction;
b) if
the Customer does not rectify the breach detailed in the notice referred to in
clause 10.1a) by the date given in the notice, Online Data Store must send
another notice in writing to the Customer at the email address given as part of
the Contact Details, stating that the Customer’s Service will be cancelled in
five (5) Business Days if the Customer does not rectify the breach detailed in
the notice to Online Data Store’s satisfaction; and
c) if the Customer does not rectify the breach detailed in the notice in clause
10.1a) to Online Data Store’s satisfaction by the date in the notice given in
accordance with clause 10.1a), then Online Data Store may cancel the Customer’s
Service immediately without further notice, at Online Data Store’s sole
discretion.
10.2 While the Customer’s Service is suspended, Online Data Store will not
backup any of the Customer’s data or provide any other part of the Service it
decides not to at its sole discretion.
10.3
Notwithstanding clauses 10.1 and 10.2, breach of clauses 8.1a), 8.1c) or
5.12constitute a material breach of these Terms and Conditions and gives Online
Data Store the right to take any one or more of the following actions at its
sole discretion (and without adhering to any notice periods or other
requirements that may otherwise be required):
a) immediately terminate or suspend the provision of the Service to the
Customer;
b) remove or disable access by the Customer to any of the Customer’s data;
c) provide the Customer with a notice to cease the activities or conduct giving
rise to the breach;
d) warn the Customer that any further repetition of the activity or conduct
giving rise to the breach will result in Online Data Store immediately
terminating or suspending the provision of the Service; or
e) report the activities or conduct giving rise to the breach to relevant
authorities.
10.4 In addition to any other termination rights given to either party in these Terms and Conditions, a Service may be terminated by the Customer by giving Online Data Store (10) Business Days notice in writing.
10.5
In the event that the Customer terminates a Service in accordance with clause
10.4, the following applies:
a) any of the Customer’s backup data held on Online Data Store’s servers will be
permanently removed as soon as practicable;
b) all of Online Data Store’s obligations under these Terms and Conditions
cease;
c) any unpaid amounts due to Online Data Store from the Customer must be paid by
the Customer within ten (10) Business Days of termination; and
d) any monthly Subscription Fee payment paid in advance by the Customer will be
forfeited to Online Data Store.
10.6
Upon termination of this Agreement through operation of clauses 6.13, a), 7.8 or
Section 10, the following applies:
a) any of the Customer’s backup data held on Online Data Store’s servers will be
permanently removed as soon as practicable;
b) all of Online Data Store’s obligations under these Terms and Conditions
cease;
c) any unpaid amounts due to Online Data Store from the Customer must be paid by
the Customer within ten (10) Business Days of termination; and
d) any monthly Subscription Fee payment paid in advance by the Customer will be
forfeited to Online Data Store.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Copyright in the Website is property of Online Data Store.
11.2 Material on this Website comprises copyright material, trademarks and registered trademarks which are the property of Online Data Store. This property may only be used for the purposes of browsing the Website and acquiring Services via the Website.
11.3 The Customer agrees that all Intellectual Property Rights subsisting in the Confidential Information or any other information issued by Online Data Store to the Customer or any other person or produced by Online Data Store remains the exclusive property of Online Data Store.
11.4 The Customer must not cause or permit anything to be done, which may damage or endanger Online Data Store’s Intellectual Property Rights or assist or allow any other person to do so.
12. CONFIDENTIAL INFORMATION
12.1 The parties agree to keep confidential all financial, technological (including designs and specifications), strategic or business information it may receive of the other party concerning or arising from an Order or the provision of the Service/s ("Confidential Information").
12.2 All Confidential Information remains the property of the provider and may only be used by the recipient in fulfilling its obligations under these Terms and Conditions.
12.3
No Confidential Information may be disclosed to any third party without the
provider's written consent, except to the extent that:
a) disclosure is necessary to comply with these Terms and Conditions or any
other agreement or obligation between the parties;
b) the disclosure is required by law or rules of any stock exchange on which
a party is listed; or
c) the Confidential Information is in the public domain other than through a
breach of these Terms and Conditions.
12.4 Where the recipient of Confidential Information believes that it is required by law to disclose any Confidential Information of the provider, the recipient must immediately notify the provider in writing and provide assistance as reasonably required by the provider, if the provider wishes to defend or resist that requirement.
13. GOODS AND SERVICES TAX (GST)
13.1 All amounts expressed or described in any Order between the Customer and Online Data Store are GST exclusive amounts unless expressly stated otherwise..
13.2 Online Data Store will do all things reasonably available to it to assist the Customer to claim on a timely basis any input tax credits (if any) the Customer may be entitled to claim for purchase of Services. This includes Online Data Store maintaining its registered status for GST purposes, and issuing Tax Invoices for supplies made under these Terms and
Conditions on a timely basis as reasonably requested by the Customer.
14. FORCE MAJEURE
14.1 Online Data Store shall not be liable for any non performance, delay, errors, data loss or other loss caused by any event reasonably beyond Online Data Store’s control including, but not limited to, acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.
15. NOTICES
All notices required under these Terms and Conditions must be in writing and hand delivered to the other party unless another method of notice is specified.
16. SEVERABILITY
Each clause of these Terms and Conditions operates separately and in the event that one clause or part of one clause is found to be unenforceable, the unenforceable clause will be severed and this will not affect the enforceability of the remainder of these Terms and Conditions.
17. WAIVER
Any waiver of any rights or obligations of a party must be in writing and delivered to the other party.
18. GOVERNING LAW
The parties unconditionally agree that this Agreement is governed by the laws of Victoria, Australia and each party agrees to be bound by the laws of this jurisdiction.
19. ENTIRE AGREEMENT
The parties agree that these Terms and Conditions and any form for an Order forms the entire understanding between the parties in relation to the provision of the Service/s and any previous discussions, negotiations or representations do not form part of this understanding. Further, neither party has relied on any representation of the other party in entering into an Order or is relying on any representation or promise made by either party which is not contained in these Terms and Conditions.
20. SURVIVAL
Sections 5, 11 and 12 of these Terms and Conditions survive termination of a Service.
We pride ourselves on our customer service and support so you will never be left out in the dark.
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