THIS DOCUMENT FORMS A CONTRACT (THE "CONTRACT") BETWEEN YOU (HEREINAFTER REFERRED TO EITHER AS "YOU" OR THE "USER" OR THE "CUSTOMER") AND DataBak (UK) Ltd ("DataBak"). BY USING THE PRODUCT OR SERVICE, AS DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS CONTRACT AND YOU AGREE TO BE BOUND BY IT.

This document exists along side the Service Level Agreement ("SLA") which provides additional guarantees and remedies for you in the event of non-performance of the service.  The SLA applies strictly to clients using the DataBak service, with a minimum of one year service contract period and who's accounts are in good standing.

1. General

1.1 DataBak agrees to provide you with software (the "Product") to be used in conjunction with a data backup service ("Service") provided by DataBak.  You may copy the Product solely for the purpose of evaluating or utilising the Service.  Any other use is strictly prohibited.

1.2 By accepting or using the Product, you acknowledge that you do not own it.  Under the terms of this Contract, in consideration of the fees you pay to DataBak in accordance with section 4 below, you may use the Product only in conjunction with the Service.

1.3 You specifically agree not to make any attempt to modify decompile or reverse engineer the Product or otherwise discover the source code or underlying processes or algorithms of the Product.

1.4 Acceptance of this agreement constitutes your express written consent to the transfer of any personal data outside the countries of the European Economic Area.  As required by the Data Protection Act 1998 DataBak shall comply with the obligations set out in the seventh principle of Schedule 1 in respect of all processing carried out on your behalf.

1.5 You agree not to use the Software or Services in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or life support applications, devices or systems.

1.6 You will not use the Services for information, data or material that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing, unfair competition, anti-discrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; (e) contains any virus or other programming routine intended to damage any system or data; or (f) is provided in breach of any prior contractual commitment to any third party.

2. Warranty

2.1 DataBak warrants that the Product and Service will perform substantially in accordance with the help file that accompanies the Product for the duration of your use of the Service.

2.2 If the Product of Service fails to perform as promised in this Contract, your sole and exclusive remedy shall be the return of fees paid for use of the Product or Service during the period for which the Product or Service failed to perform as promised.

2.3 Notwithstanding the foregoing, if any failure of the Product or Service has resulted from abuse, misapplication, or unauthorized use, the limited warranty provided by this Contract is and shall be void.

2.4 Under no circumstances will DataBak be liable for data that was never sent by you, using the Product, to the backup data centre.  You are therefore advised to check the log file to ensure that the desired files have been transmitted.

2.5 To the maximum extent permitted by applicable law you acknowledge that DataBak's obligations and liabilities in respect of the Product are exhaustively defined in this Contract.  You agree that the express obligations and warranties made by DataBak in this Agreement are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this Contract including (without limitation) as to the condition, quality, performance, or fitness for the purpose of the Product or any part of it.

2.6 You are responsible for the consequences of any use of the Product.  DataBak will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatsoever and however caused, whether arising under contract, tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if DataBak has been advised of their possibility.

2.7 DataBak accepts liability to the extent it results from the negligence of DataBak and its employees for:

2.7.1 Death or injury without limit; and
2.7.2 Physical damage to or loss of the Customer's tangible property up to the amount of the Price in respect of each incident or series of connected incidents.

2.8 In all other cases not falling within clause 2.6 DataBak's total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Contract or based on any claim for indemnity or contribution will not exceed the Price.

2.9 You agree that, except as expressly provided in this clause 2 DataBak will not be under any liability of any kind whatsoever and however caused arising directly or indirectly in connection with this Contract. You will indemnify DataBak in respect of any third party claim for any injury, loss, damage or expenses occasioned by or arising directly or indirectly from your possession, operation, use or modification of the Product except and in so far as DataBak is liable as expressly provided in this Agreement.

2.10 You acknowledge and agree that the allocation of risk contained in this clause 2 is reflected in the Price paid for the Product and Service and is also recognition of the fact that inter alia it is not within DataBak's control how and for what purpose the results of the Service are used by the Customer.

3. Term

3.1 When you agree to the terms of this Contract, you acquire a licence to use the Product. The User's licence to use the product is valid only for so long as you actually use and pay for the Service provided by DataBak. At no time and under no circumstances do you acquire an ownership interest in the Product.

3.2 The licence provided by this Contract expires upon the earlier to occur of the following: (i) DataBak receives actual notice from you that you wish to cancel the Service, or (ii) you have failed to pay service charges due under section 4 of this Contract within 15 days of their due date.

3.3 Your licence will also terminate without further action or notice by DataBak if you become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative receiver or receiver appointed or suffer or file any similar action in consequence of debt.

3.4 Following termination of your licence for whatever reason:

3.4.1 You will destroy the software together will all copies in any form, including copies on your hard and backup disks.

3.4.2 Any use of any copies of the software will be unlawful; and DataBak shall have the right to delete your stored Data without liability for loss or damage.

3.4.3 DataBak will remove and destroy all of your backup data on termination of this agreement.

3.5 You agree to contract for the provision of the Service for a minimum period of twelve months.

3.5.1 If you terminate your contract with DataBak prior to the expiry of this period, otherwise than by reason of any breach of this Contract on the part of DataBak, you will be liable to make a one-off payment for the length of time remaining under the contract calculated on the banding rate applicable to your highest rate of usage of the Service.

3.6 At the end of the contract Period, the Contract will automatically renew for a further equal period unless otherwise agreed to by DataBak in writing at least 30 days prior to the end of the Period.

4. Pricing

4.1 The price you pay for the Service will be the price shown within the relevant banding rate applicable from time to time and stipulated on the DataBak web site.

4.2 You acknowledge that the price shown within the relevant banding rate is subject to change and is dependent upon the service package selected and the amount of data that is being stored.

5. Entire and Final Agreement

5.1 With the exception of the "SLA" for Business clients, this agreement shall constitute the entire agreement and understanding between the parties with respect to all matters, which are referred to and shall supersede any previous agreement(s) between the parties in relation to the matters referred to in this agreement. Where conflict exists between this Agreement and the aforementioned SLA, this the terms of this Agreement shall be deemed to override those of the SLA.

6. Force Majeure

6.1 Neither party shall be liable for any failure or delay in performance of this agreement, which is caused by circumstances beyond the reasonable control of that party including but not limited to acts of war, acts of God, earthquake, flood, riot, embargo, government act or failure of the Internet.

7. Governing Law

7.1 This Agreement will be construed in accordance with and governed by the law of Scotland and each party agrees to submit to the non-exclusive jurisdiction of the Courts of Scotland.

8. Supervening illegality and severance

8.1 Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of this Agreement, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.

I, THE CUSTOMER OR USER, ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.