Gravity Internet | Terms and Conditions | Secure Online Data Backup

Terms and Conditions

Online Data Backup

revision 1.2
7th July 2008

1. DEFINITIONS AND INTERPRETATION

These Speciﬁc Terms and Conditions are to be read in conjunction with our Master Services Agreement. All
deﬁnitions set out in the Master Services Agreement shall, unless otherwise speciﬁed below, have the same
meaning when used in these Speciﬁc Terms and Conditions. For the purpose of these Speciﬁc Terms and
Conditions:

1.1 “Effective Date” means the date which you commence using the Services.

1.2 “Services” means the provision of data storage and retrieval services by Gravity Internet, including the provision of storage space on a server.

1.3 “Channel Partner” means the third party manager appointed by Gravity Internet for the provision of the Services to you, where relevant.

1.4 “Storage Limit” means the maximum amount of server storage space that is available for your use, as agreed between Gravity Internet or the Channel Partner and you prior to commencement of the Subscription Period, as may be amended by agreement between Gravity Internet or the Channel Partner from time to time.

1.5 “Subscription Fee” means the monthly fee payable by you in arrears in respect of the provision of the Services, calculated in accordance with the Storage Limit and in accordance with the price agreed between Gravity Internet or the Channel Partner prior to the Effective Date, as may be varied by Gravity Internet or the Channel Partner on notice to you from time to time.

1.6 “Subscription Period” means the period from the Effective Date until this Agreement is terminated in accordance with the provisions herein.

2. GRANT OF RIGHTS; RESTRICTIONS

2.1 Subject to all the terms and conditions of this Agreement, Gravity Internet shall supply the Services to you and grant you a personal, non-transferable, terminable licence to use the Services from the Effective Date for the Subscription Period.

2.2 You may request and Gravity Internet or the Channel Partner may agree to upgrade or downgrade the Services provided to you and the Subscription Fee payable will be amended accordingly for the next monthly payment.

2.3 Gravity Internet shall use all reasonable endeavours to ensure that access to the Services is available at all times subject to planned and emergency downtime as set out at clause 2.6.

2.4 You hereby agree not to use the Services for any use that is:

2.4.1 obscene, libellous, blasphemous, defamatory, inciting hatred;
2.4.2 unlawful or misleading;
2.4.3 for any use that breaches third party copyright, including, without limitation, storing or sharing copyrighted music or other copyrighted material that has not been legally obtained;
2.4.4 undertaken on behalf of third parties;
2.4.5 in contravention of any applicable local, state, national and foreign laws, treatises and regulations.

2.5 Your use of the Service is subject to the Storage Limit.

2.6 Gravity Internet shall use all reasonable endeavours to notify you of planned downtime and unavailability of the Service however notwithstanding such obligation, Gravity Internet shall not be liable for any Service unavailability which arises as a result of emergency downtime and Service unavailability.

2.7 Unauthorised use of the Service, and/or the resale of the Services without Gravity Internet’s prior written consent, is expressly prohibited.

3. PROPRIETARY RIGHTS

3.1 Gravity Internet has sole and exclusive ownership of all right, title, and interest in and to the Services and any software included in the Services, including all copyright and any other intellectual property rights therein. This Agreement conveys a limited right and license to use the Services and any software made available to you and shall not be construed to convey title to or ownership of the Services or the software contained therein to you. Specifically, and without limitation to the generality of the foregoing, the software shall only be used by you to the extent necessary to benefit from the use of the Services. All rights in and to the Services and software not expressly granted to you are reserved by Gravity Internet.

3.2 The password, client certificate and log-on details provided to you are confidential to you and you hereby agree that you shall not share such information with any third parties. You shall notify Gravity Internet forthwith if you are aware of any third party having access to such information.

4. FEE

4.1 In consideration for the provision of the Services, you shall pay Gravity Internet or the Channel Partner the non-refundable Subscription Fee.

4.2 Gravity Internet or the Channel Partner shall, on the last working day of every month, calculate the Subscription Fee and issue invoices in respect of the Subscription Fee. The Subscription Fee will then be payable within seven (7) days of the date of the invoice. Both parties agree that no refunds shall be given in any circumstances.

4.3 The Subscription Fee is exclusive of VAT or other sales tax which, if applicable to you, shall be payable by you at the then prevailing rate.

4.4 In the event that the Subscription Fee, as appropriate, is not collected in accordance with the provisions herein, Gravity Internet may deny you access to the Services without notice.

5. TERM AND TERMINATION

5.1 This Agreement shall commence on the Effective Date and shall continue in effect for the Subscription Period.

5.2 If either party breaches this Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, this Agreement shall terminate without any further notice required.
Without prejudice to the foregoing, in the event that you breach the provisions of clause 2, Gravity Internet may suspend and/or terminate the Services forthwith without notice.

5.3 You may terminate the Subscription Period at any time on the provision of 30 days notice to Gravity Internet or its agent.

5.4 Upon any termination of this Agreement:

(a) the rights and licenses granted to you herein shall terminate;
(b) you shall cease all use of the Services and software made available to you by Gravity Internet;
(c) Gravity Internet shall at its own discretion remove and/or purge your data and account from the system; and
(d) clauses 3, 6 and 7 shall survive.

6. WARRANTIES AND LIABILITY

6.1 Gravity Internet does not represent or warrant that: (i) the use of the Services will be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (ii) the Services will meet your requirements or expectations, (iii) errors or defects will be corrected, (iv) the Services or the
server(s) that make the Services available are free of viruses or other harmful components. The Services are provided to you strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law.

6.2 Your sole remedy with respect to any claims arising out of this Agreement shall be limited in the aggregate to the monies paid by you to Gravity Internet or the Channel Partner under this Agreement during the twelve (12) month period preceding the event giving rise to such liability.

6.3 In no event shall Gravity Internet be liable for:

(a) any special, indirect, incidental or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products or services by you even if advised of the possibility of such damages;
(b) any delay or failure to provide the Services that is due to third parties, including, without limitation, internet service providers, data centres, server hosting companies and telecommunications companies whether such third parties are providing services to you or to Gravity Internet;
(c) fraud committed against you by any third party provider of internet payment services;
(d) data that was never transmitted to our servers, including open files skipped during the backup process. You are required to check backup log files on a regular basis to ensure that the required files have been transmitted, and that the automated backup system has been configured according to the instructions supplied by Gravity Internet. Gravity Internet is not responsible for monitoring your backup log files;
(e) data that has been removed from our servers due to incorrect configuration of the software included in the Services. In particular, you should ensure that the treatment of files that have been deleted or modified locally is correct;
(f) data produced by applications that the software included in the Services was not designed to work with, such as third party database applications. Examples of such applications can be found on the Gravity Internet online help pages;
(g) data corruption or inconsistencies introduced in data transmitted to our servers due to incorrect operation of the software included in the Services, or failure to follow the instructions supplied by Gravity Internet.

7. GENERAL

7.1 You shall not assign this Agreement, in whole or in part, without the prior written consent of Gravity Internet.

7.2 You consent to the use by Gravity Internet of your name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between you and Gravity Internet.

7.3 This Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.

7.4 You agree that because of the unique nature of the Services and Gravity Internet’s proprietary rights therein, a demonstrated breach of this Agreement by you would irreparably harm Gravity Internet and monetary damages would be inadequate compensation. Therefore, you agree that Gravity Internet shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Agreement.

7.5 If any provision of this Agreement or the Services thereof is declared void, illegal, or unenforceable, the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

7.6 Any failure by any party to this Agreement to enforce at any time any term or condition under this Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Agreement.

7.7 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the non-performing party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance here-under with reasonable dispatch whenever such
causes are removed.

7.8 This Agreement cannot be altered except by agreement in writing executed by an authorised
representative of each party. No purchase order and/or standard terms of purchase provided by you shall supersede this Agreement.

7.9 Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against Gravity Internet and such third parties shall not be entitled to enforce any term of this Agreement against Gravity Internet.

This document may be modified from time to time.

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