This agreement (“Agreement”), together with any additional documents referred to, is a legal agreement between you (“you”) and BackupChecks, a brand of Perspexy Limited (a company registered in England and Wales with registered number 09513726 with registered office address at 9 Park Hill London, SW4 9NS) (“we”, “us” and “our”) for the use of the Software and Service (each defined below). By downloading and installing the Software and commencing use of the Service you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement then you must not download and install the Software or use the Service.
Customer Data means any information about you, which is provided by you to us as part of your use of the Software or Service, including any information derived from such information.
Customer Personal Data means any personal data (as defined in the Data Protection Act 1998) comprised in the Customer Data.
End User Data means any information about your customers
Documentation means the user guides, and other technical and operations manuals and specifications for the Service located at BackupChecks.com as such documentation may be updated by us from time to time.
Fee means the sums payable by you in respect of your use of the Service as described in the pricing section of the Website and order form.
Force Majeure Event includes, but is not limited to, acts, events, omissions or accidents beyond our reasonable control, including but not limited to, acts of God, extreme adverse weather conditions or natural disaster, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, terrorist attack, civil war, civil commotion, unrest or riots, nuclear, chemical or biological contamination or sonic boom, compliance with any law, regulation or directive, fire, explosion or accidental damage, failure of plant machinery, machinery, computers or vehicles, any labour dispute, including (but not limited to) strikes, industrial action or lockouts, non-performance by suppliers or subcontractors and interruption or failure of utility or transport service, internet service provider failures or delays or denial of service attacks.
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may, now or in the future, subsist in any part of the world.
BackupChecks Content means Content we make available on the website to allow access to and use of the Service, including Documentation and other related technology. BackupChecks Content does not include the Service.
Policies means any applicable acceptable use policies notified to you, the Website terms, the Service Terms, all restrictions described in the BackupChecks Content and on the Website, and any other policy or terms referenced in or incorporated into this Agreement.
Service means the service made available by us.
Software means the software made available to you under this Agreement which facilitates your use of the Service.
Term means the term of this Agreement.
User means any person authorised by you to use or access the Software or Service, including your employees and agents and any of your end user customers.
Website means BackupChecks.com or such other website owned or controlled by us that we notify you of from time to time.
2. Contract Formation
By checking the box indicating your acceptance of the terms of this Agreement you represent to us that you are lawfully able to enter into contracts (e.g. you are not a minor). If you are entering into this Agreement on behalf of an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. We may change, update and modify the software and service from time to time. Nothing in this Agreement shall detract from your rights as a consumer, if any.
3. Use of Service
Generally. You may access and use the Service in accordance with this Agreement. You must adhere to all laws, rules, and regulations applicable to your use of the Service, including the Policies as defined in section 1. Once you have downloaded the Software you may use the Service in accordance with the terms of this Agreement and based on the number of users in your subscription.
Your Account. You are responsible for all activities that occur under your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and whether or not such activities are authorised by you and, except to the extent caused by our breach of this Agreement, we are not responsible for unauthorised access to your account.
Our Responsibilities. We shall: (i) provide Our basic support for the Service to You at no additional charge, (ii) use commercially reasonable efforts to make the support available 24 hours a day, 7 days a week, except any unavailability caused by circumstances beyond Our reasonable control and Force Majeure Events, (iii) provide the Service using reasonable care and skill and in accordance with applicable laws and government regulations,
Our access to End User Data. We shall not access End User Data. Only data relating to the number of users is sent to BackupChecks for billing purposes. We do not have access to the appliance or to any data relating to backups or End User Data.
Our Protection of Customer Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. We shall not (i) modify Customer Data, (ii) disclose Customer Data except as compelled by law or as expressly permitted in writing by You, or (iii) access Customer Data except to provide the Service and prevent or address service or technical problems, or at Your request in connection with customer support matters. We shall comply with the Data protection Act 1998 in relation to the processing of Personal Data under this Agreement.
Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which You acquired Customer Data, and you warrant and undertake that you have and will maintain all necessary right, licenses and authorities necessary to provide Customer Data to us and to authorize us to provide the Service without breach of any law, agreement, arrangement or duty or the rights of any third party.
You are responsible for using the required version of the Asigra software, specific to the correct version of BackupChecks.
You shall not (i) make the Software available to anyone other than Users,
You shall not (i) interfere with or disrupt the integrity or performance of the Service and Software, or (iii) attempt to gain unauthorized access to the Service or the Software
You will manage and maintain the Virtual Server required for the Software to function.
You will ensure that all information you provide to us is accurate, complete and not misleading. You may only access the Service through the software download and are solely responsible for the proper configuration as guided by the Documentation. In order to perform the Service, the software requires access to the computer infrastructure (the “Virtual Server(s)”) for installation of the Software and Service. You hereby agree that, for as long as your account with our software is active: (i) you shall assist the software to access the Virtual Server(s); ((ii) we may apply security and software updates at any time; (iii) we may terminate the Service if you attempt to access or tamper with the software installed onto the Virtual Server(s); (v) the software shall be authorized by you to access your backup systems that you wish to provide the service for, solely for the purpose of providing you with the software and service; and (vi) you shall be responsible for maintaining the physical server infrastructure.
In consideration of your acceptance of the terms of this Agreement we grant to you a non-exclusive, non-transferable right to download, install and use the Software in connection with the Service for the Term on the terms of this Agreement and all applicable Policies. If any additional supplementary software including additional tools, modules or any patches or modifications relating to the Software are made available to you by us after the release of the Software, such additions and modifications, where installed by you, shall form part of the Software and shall be subject to the terms of this Agreement. Except as expressly set out in this Agreement or as permitted by any local law, you undertake not to: (i) copy the Software except where such copying is incidental to normal use of the Software or where it is necessary for the purpose of back-up or operational security; (ii) rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software; (iii) make alterations to, or modifications of, the whole or any part of the Software nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs; or (iv) disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities (a) is used only for the purpose of achieving inter-operability of the Software with another software program; (b) is not unnecessarily disclosed or communicated to any third party without our prior written consent; and (c) is not used to create any software which is substantially similar to the Software.
5. Intellectual property rights
You acknowledge that all Intellectual Property Rights in the Software and the Service belong to us or our licensors and that your sole right to use such Intellectual Property Rights are as described in this Agreement. You shall be the owner (or licensor) of all Intellectual Property Rights in the Customer Data and you hereby grant us all rights to use the Customer Data as necessary to provide the Software and Service and you shall indemnify us and hold us harmless against any third party claim that the Customer Data or our use of it pursuant to the Service infringes any Intellectual Property Right or is contrary to the Data Protection Act 1998.>
6. Fees and Payment
We reserve the right to require payment of fees for certain or all services. You shall pay all applicable fees, as described on the website and order form in connection with such services selected by you. We reserve the right to change Our price list and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Website. Your use of the Services following such notification constitutes your acceptance of any new or increased charges. Any fees paid hereunder are non-refundable. From time to time, we may offer free or discounted pricing offers covering certain usage of the Service (each, a “Discounted Pricing Offer”). We may stop accepting new sign-ups or discontinue a Discounted Pricing Offer at any time. Standard charges will apply after a Discounted Pricing Offer ends or if you exceed the limitations by the Discounted Pricing Offer. You must comply with any additional terms, restrictions, or limitations for the Discounted Pricing Offer as described in the offer terms for the Discounted Pricing Offer or on the pricing page for the eligible Service(s).
7. Limitation Of Liability
In no event shall BackupChecks or It’s Suppliers, or their Respective Officers, Directors, Employees, Or Agents be liable to you, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of income, business profits or contracts, anticipated savings, information, opportunity, goodwill or reputation or business interruption or damage to or corruption of data (in each of the forgoing cases) whether of a direct or indirect nature nor for any indirect or consequential loss or damage. Further, we will not be responsible for any compensation, reimbursement, or damages arising in connection with: (a) your inability to use the Service, including as a result of any (i) termination or suspension of this Agreement or your use of or access to the Service Offerings, (ii) our discontinuation of any or all of the Service Offerings, or, (iii) any unanticipated or unscheduled downtime of all or a portion of the Service for any reason, including as a result of power outages, system failures or other interruptions
BackupChecks is not responsible for the development of the Asigra backup software or any changes to the functionality of BackupChecks caused by changes to Asigra.
Our maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the amount that you have actually paid to us under this Agreement for the Service. Nothing in this Agreement shall limit or exclude the liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or any other thing which cannot be properly excluded by law.
8. Term and Termination
This Agreement commences on the date you accept its terms or first start using the Service and Software or any part of them (whichever is the earlier) and shall continue until terminated in accordance with the terms of this Agreement. Either party may terminate your use of the Services and Software at any time. We may also terminate or suspend any and all Services and access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Services and Software, access the Website, and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
You hereby agree, at your expense, to indemnify, defend and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or in connection with: (i) your use of the Service Offerings; (ii) breach of this Agreement or violation of applicable law by you or any User; (iii) any third party claim, action or allegation that any Customer Data, information, data or content that you have submitted in connection with the Service infringes any Intellectual Property Rights; or (iv) a dispute between you and any User. We reserve the right, at our own expense and sole discretion, to assume the exclusive defences and control of any matter otherwise subject to indemnification by You.
10. Transfer of rights and obligations
You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without our prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of our rights or obligations arising under it, at any time during the term of the Agreement.
Variation. We may vary the terms of this Agreement at any time by posting amendments on our website. By continuing to use the Software and Service you are deemed to accept such amendments. In particular, the terms of this Agreement will be amended in line with amendments made to third parties from whom we receive service necessary for us to provide the Software and Service.
Force Majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by a Force Majeure Event.
No Waiver. If we fail, at any time during the term of this Agreement, to insist upon strict performance of any of your obligations under this Agreement, or if we fail to exercise any of the rights or remedies to which we are entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
Severability. If any of the terms of this Agreement are determined by any competent authority to be invalid, illegal or unenforceable to any extent, such term, condition or provision will to that extent be deemed deleted and the remaining provisions shall continue in full force and effect.
Entire Agreement. This Agreement and any document expressly referred to in it constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between us, relating to the Software and Service. The parties each acknowledge that, in entering into this Agreement (and the documents referred to in it), neither of them rely on any statement, representation, assurance or warranty of any person other than as expressly set out in this Agreement or those documents.
Rights of Third Parties. This Agreement is not intended to convey a benefit on any person not a party to it and accordingly the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.
Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English courts.