Updated May 31, 2026
This BackupMaster Terms of Service, along with BackupMaster’s Privacy Policy and Data Processing Addendum (collectively referred to as “Agreement”) between the entity identified as the customer on the order form (“Customer”) and BackupMaster Technologies Pty Ltd. (ABN 34 695 017 648), a company incorporated in Australia (“BackupMaster”) governs access to and use of the BackupMaster cloud-based software and associated services (“Service”) and effective as of the date that Customer subscribes to the Service. By subscribing to the Service, Customer hereby agrees to the terms and conditions of this Agreement.
If you agree to this Agreement for the use of the Service by an organization, you agree on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise, you must not sign up for the Service.
BackupMaster provides cloud-based Software on a software-as-a-service basis designed to assist with backing up and restoring Customer’s Cloud Service Account. By subscribing to the Service, Customer links the Software to Customer’s Cloud Service Account. Subject to this Agreement, the applicable Subscription Plan, Cloud Service Provider functionality, permissions, API availability, and technical limitations, the Software is designed to copy Customer Data from Customer’s Cloud Service Account and save Customer Data in BackupMaster cloud-based storage (“Storage”). BackupMaster generally performs automated backups at least once per day, although backup timing, frequency, completeness, and availability are not guaranteed. Customer may also manually start a backup process where this functionality is available. All Customer Data transfers are encrypted, and Customer Data in Storage is encrypted at rest. Subject to this Agreement and applicable technical limitations, Customer may access available versions of Customer Data saved in Storage and may restore supported Customer Data to Customer’s Cloud Service Account. Certain Subscription Plans may have additional features as described on the subscriptions page or in BackupMaster’s documentation. This Section is subject to Section 4.3.
The use of Cloud Service Provider is subject to its own terms of service, which are separate from and may differ from the terms and provisions of this Agreement. BackupMaster is not responsible and cannot be liable for any loss or damage resulting from the provision of any services provided by Cloud Service Provider.
Subject to the terms and conditions of this Agreement and the applicable Subscription Plan selected by Customer, including the timely payment of the Subscription Fees, BackupMaster hereby grants to Customer a non-exclusive, non-transferable, internal license to access and use the Service for its internal business purposes. The Service is designed to assist Customer with backing up and restoring supported Customer Data from Customer’s Cloud Service Account, subject to this Agreement, the applicable Subscription Plan, Cloud Service Provider functionality, permissions, API availability, and technical limitations. Use of the Service requires Customer to implement and maintain the integration of the Service with the applicable Cloud Service by following the steps made available for that Cloud Service.
BackupMaster may update the Service from time to time.
The Service is sold on a subscription basis. BackupMaster will deliver the Service to Customer for the Service Term.
Customer’s subscription to the Service will automatically renew for the Renewal Term at the then-current subscription level. If Customer has already provided a payment method to BackupMaster for recurring charges and Customer’s Account is set to auto-renewal or is in a trial period, BackupMaster may charge automatically at the end of the trial or for the renewal unless Customer cancels the Service.
Customer may upgrade or downgrade in subscription level at any time. Customer may elect to terminate this Agreement by uninstalling the Software from Customer’s Cloud Service Account. When Customer uninstalls the Software, the subscription will be canceled automatically.
BackupMaster may revise the Service rates by providing Customer at least thirty (30) days’ notice prior to the next charge.
Customer will pay Subscription Fees on the payment interval set forth in the Order Form depending on the Subscription Plan chosen by Customer on Subscription. Subscription Fees are due and payable upon subscription and, thereafter, are charged every thirty (30) days for monthly plans or annually (in advance) for annual plans, as applicable, throughout the Service Term. Subscription Fees are invoiced through Customer’s Cloud Service Provider, BackupMaster, or BackupMaster’s third-party payment processor, as applicable, and are subject to the applicable billing and payment terms presented at the time of subscription. Subscription Fees are payable in USD. Subscription Fees are exclusive of taxes, and Customer is responsible for all sales, use, value-added, goods-and-services, withholding, and similar taxes, duties, and assessments associated with its purchase of the Service, excluding taxes based on BackupMaster’s net income.
BackupMaster may suspend or terminate the Service if Fees are past due. Customer will provide complete, accurate, and up-to-date billing and payment information to the applicable payment provider, and will provide accurate and up-to-date contact information to BackupMaster. In the event Customer is in default of any payments and BackupMaster is unable to reach Customer at the last contact information on file with BackupMaster, BackupMaster may terminate this Agreement for payment default by giving notice of termination to Customer using the last known contact information on file and seven (7) Business Days thereafter may terminate any further access to the Service hereunder.
Customer may cancel its subscription at any time, and cancellation stops future charges. Except where required by law or as otherwise provided in this Agreement, Subscription Fees are non-refundable and non-creditable, including for partially used periods. Where a Subscription Plan includes a free trial, Customer will not be charged during the trial period and may cancel before the trial ends to avoid any charge. BackupMaster may, in its sole discretion, grant a refund or credit in individual cases, but is not obligated to do so, and any such refund or credit does not create an entitlement to future refunds or credits.
BackupMaster may suspend Customer’s access to the Service if: (i) Customer’s Subscription Fees are past due; or (ii) Customer has exceeded any Subscription Plan Limits. BackupMaster may also suspend Customer’s access to the Service or remove Customer Data if it determines that: (a) Customer has breached any portion of this Agreement, or (b) suspension is necessary to prevent Security Emergency, provided that BackupMaster will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate Security Emergency. BackupMaster will have no liability for taking action as permitted above.
Customer will prevent unauthorized use or access to the Service and will maintain the security and confidentiality of the credentials and authentication methods used to access the Service. Customer is responsible for all activity that occurs under its account or credentials. Customer will promptly notify BackupMaster of any unauthorized use of or access to the Service or any compromise of its credentials.
The Service is not intended for persons under the age of 13 if they reside in the United States, or 16 if they reside anywhere else. Customer will ensure that it does not allow any person under 13 residing in the United States, or 16 if they reside anywhere else, to use the Service.
Customer will not use or permit the Service to be used for any illegal or misleading purpose.
Customer will comply with laws and regulations applicable to Customer’s use of the Service. Customer will not take any action that would cause BackupMaster to violate EU Data Protection Laws, the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, or any other applicable data protection, anti-bribery, anti-corruption, or anti-money laundering law. Customer must satisfy itself that: (i) the Service is appropriate for its purposes, taking into account the nature of Customer Data; and (ii) the technical and organizational requirements applicable to BackupMaster under EU Data Protection Laws or other data protection laws, if applicable, are satisfied by the BackupMaster Security Policy and this Agreement.
Customer agrees not to misuse the BackupMaster Service or help anyone else misuse it. Except as otherwise expressly permitted in this Agreement, Customer shall not and shall not permit any other individual or entity to:
BackupMaster reserves the right to take appropriate action in response to violations of this policy, which could include removing or disabling access to content, suspending a user’s access to the Service, or terminating an account.
Customer acknowledges that the Service depends on, and interoperates with, Cloud Service Providers and other third-party platforms, applications, and systems, including their APIs, app marketplaces, billing systems, scopes, permissions, and rate limits.
BackupMaster is not responsible for any delay, failure, data inconsistency, loss, unavailability, API restriction, rate limit, permission issue, platform change, outage, suspension, deletion, billing issue, or other issue caused by a Cloud Service Provider or by any third-party platform, application, or system that is used or selected by Customer.
If Customer uses any third-party service or application with the Service, BackupMaster is not responsible for any act or omission of that third party, including the third party’s access to, use of, modification of, or deletion of Customer Data, and BackupMaster does not warrant or support any service provided by that third party.
This Agreement constitutes Customer’s instructions to BackupMaster to Process Customer Data. BackupMaster, BackupMaster personnel, and its Sub-processors will only Process, access, use, store, and transfer Customer Data as Customer instructs in order to deliver the Service and to fulfill BackupMaster’s obligations in this Agreement. BackupMaster will inform Customer of any legal requirement which prevents it from complying with Customer’s instructions unless prohibited from doing so by applicable law or on important grounds of public interest. Any BackupMaster personnel who have access to Customer Data will be bound by appropriate confidentiality obligations.
All Customer Data that is stored in BackupMaster Storage is encrypted at rest and stored in BackupMaster Storage for a period of time prescribed by the applicable Subscription Plan Customer subscribes to, and thereafter may be irretrievably deleted within 30 business days in accordance with BackupMaster’s standard deletion policies.
The Service is designed to assist with backup, restoration, transfer, export, import, and related data protection workflows. Customer acknowledges that the Service may depend on the availability, accuracy, functionality, permissions, rate limits, data models, and behaviour of Cloud Service Providers and other third-party systems. Customer further acknowledges that, as with any software-based service, the Service and Software may contain errors, defects, or limitations, and that operations performed through the Service may be delayed, interrupted, incomplete, inaccurate, or unsuccessful.
To the maximum extent permitted by law, BackupMaster does not guarantee that all Customer Data or any particular Customer Data will be backed up, retained, complete, uncorrupted, error-free, or restorable, or that the Service will recreate or produce any particular state, result, or outcome in Customer’s Cloud Service Account.
Customer is responsible for reviewing backup, restore, transfer, export, import, and other operation results, periodically verifying the integrity and restorability of its data where appropriate, and maintaining appropriate independent records, safeguards, data-retention practices, and disaster-recovery procedures for its business.
BackupMaster will use industry-standard technical and organizational security measures to protect Customer Data, and all transmissions of Customer Data between Cloud Service and BackupMaster Storage occur on secured connections. Additional information about BackupMaster’s security practices for the Service is available for reference on the BackupMaster Security Policy page and in any applicable Security Resources.
To the extent Customer Data comprises Personal Data that is processed by BackupMaster on Customer’s behalf, Customer and BackupMaster agree to the BackupMaster Data Processing Addendum which forms part of this Agreement, and sets out the obligations of BackupMaster regarding the processing of Customer’s Personal Data collected and held by BackupMaster in accordance with Regulation (EU) 2016/679 (General Data Protection Regulation (“GDPR”)).
The categories of Personal Data to be processed by BackupMaster and the processing activities to be performed under this Agreement are set out in the BackupMaster Data Processing Addendum. BackupMaster stores and processes any Personal Data that is made available by Cloud Service Provider’s API in Customer’s Account in accordance with the BackupMaster Data Processing Addendum and the BackupMaster Privacy Policy that may be amended by BackupMaster from time-to-time, and shall be incorporated into and form part of this Agreement.
BackupMaster will make available information reasonably necessary to demonstrate its compliance with the security and data protection obligations in this Agreement, including applicable security documentation, certifications, reports, or summaries that BackupMaster makes generally available to customers.
Any audit or inspection rights are subject to the Data Processing Addendum and applicable law. To the maximum extent permitted by law, BackupMaster is not required to provide access to its systems, source code, internal tools, other customers’ data, confidential security information, or information that would compromise the security, confidentiality, availability, or integrity of the Service.
BackupMaster may satisfy audit or inspection requests by providing independent third-party audit reports, security certifications, trust center materials, written responses, or other reasonable evidence of compliance.
Customer agrees that BackupMaster and its Sub-processors may transfer Customer Data to and access, use, Process and store Customer Data in locations other than Customer’s country. Where applicable, international transfers of Personal Data are subject to the Standard Contractual Clauses or other appropriate safeguards as set out in the Data Processing Addendum.
If Customer receives any take-down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the Service; and (ii) notify BackupMaster. If BackupMaster receives any take-down requests or infringement notices related to Customer Data, BackupMaster may respond in accordance with its policies and will notify and consult with Customer on the next steps.
Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Each Party, as the Receiving Party, will: (i) take reasonable measures to protect the Disclosing Party’s Confidential Information, including at least those measures it takes to protect its own confidential information of a similar nature; and (ii) not disclose Confidential Information to any third parties. A Party may disclose Confidential Information to its employees, advisors, and consultants who have a need to know Confidential Information if that employee, advisor, or consultant is bound to restrictions at least as protective of the other Party’s Confidential Information as those set forth in this Agreement.
Confidential Information does not include information that: (i) is or becomes generally known or available to the public, through no act or omission of the Receiving Party; (ii) was known, without restriction, prior to receiving it from the Disclosing Party; (iii) is rightfully acquired from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed without access to any Confidential Information of the Disclosing Party.
Except as expressly set forth herein, this Agreement does not grant (a) BackupMaster any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in the Service or BackupMaster’s trademarks and brand features. Customer acknowledges that it is obtaining only a limited right to use the Service and that irrespective of any use of the words “purchase,” “sale,” or similar terms, no ownership rights are transferred to Customer under this Agreement.
Customer grants BackupMaster only the limited rights that are reasonably necessary for BackupMaster to deliver the Service. This limited permission also extends to Sub-processors.
BackupMaster may use, modify, and incorporate into the Service any Feedback that Customer may provide without any obligation to Customer. Customer agrees to (i) and hereby does, assign to BackupMaster all right, titles, and interests in any Feedback; and (ii) provide BackupMaster any reasonable assistance necessary to document and maintain BackupMaster’s rights in Feedback.
Despite anything to the contrary in this Agreement: (a) Beta Services may not be supported and may be changed at any time without notice; (b) Beta Services may not be as reliable or available as the Service; (c) Beta Services have not been subjected to the same Security Policy and auditing to which the Service has been subjected; and (d) BackupMaster will have no liability arising out of or in connection with Beta Services. Use at your own risk.
BackupMaster offers Beta Services in order to get user feedback. In exchange for using Beta Services, Customer agrees that BackupMaster may contact Customer to obtain Feedback regarding Beta Services.
This Agreement will remain in effect for the Term.
Either Party may terminate this Agreement, including all Order Forms, if: (i) the other Party is in material breach of this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations. BackupMaster may terminate this Agreement and suspend Customer’s access to the Service if required to do so by law or for an egregious violation by Customer of the Acceptable Use Policy.
BackupMaster may terminate this Agreement, or suspend or discontinue the Service in whole or in part, on at least thirty (30) days’ prior notice to Customer where BackupMaster reasonably determines that it is necessary or appropriate due to legal, security, technical, operational, platform-related, or material business reasons, including where BackupMaster generally discontinues the relevant Service or feature.
Notwithstanding Section 2.4, if BackupMaster terminates or discontinues the Service under this section other than for Customer’s breach, BackupMaster will refund to Customer a pro-rata portion of any prepaid Subscription Fees for the unused portion of the then-current Service Term.
If this Agreement terminates: (a) except as set forth in this Section, the rights and licenses granted by BackupMaster to Customer will cease immediately; (b) Customer may, prior to termination, request reasonable additional time to export its Stored Data, provided that BackupMaster may charge Customer for this extended access based on BackupMaster’s then-current standard fees; and (c) BackupMaster will delete any Stored Data in Customer’s Account in a commercially reasonable period of time.
After termination or expiry, BackupMaster has no obligation to maintain, restore, export, provide, or allow access to Customer Data except as expressly required by applicable law or agreed in writing (including under the Data Processing Addendum). Customer is responsible for exporting any Customer Data it wishes to retain before termination or expiry.
The following sections will survive the expiration or termination of this Agreement: Payment, Intellectual Property Rights, Effects of Termination, Survival, Indemnification, Disclaimers, Limitation of Liability, Disputes, and Miscellaneous.
Customer will indemnify, defend, and hold harmless BackupMaster from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of or relating to any Claim against BackupMaster regarding or arising from: (a) Customer Data, including any allegation that Customer Data, or BackupMaster’s Processing of it in accordance with Customer’s instructions, infringes, misappropriates, or violates any third party’s intellectual property, privacy, publicity, or other rights, or any applicable law; (b) Customer Domains; (c) Customer’s use of the Service in violation of this Agreement, the Acceptable Use Policy, or applicable law; (d) Customer’s breach of its obligations or representations under this Agreement; or (e) Customer’s violation of any applicable data protection, privacy, anti-bribery, anti-corruption, sanctions, or export-control law.
Subject to Section 11, BackupMaster will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs, including settlement costs and reasonable attorneys’ fees, finally awarded by a court or agreed in a settlement approved by BackupMaster, arising out of any Claim against Customer to the extent based on an allegation that the Software, as provided by BackupMaster and used by Customer in accordance with this Agreement, infringes or misappropriates a third party’s copyright, trade secret, trademark, or patent right enforceable in Australia or the United States.
BackupMaster will have no obligation or liability under this section to the extent the Claim arises out of or relates to: (a) Customer Data; (b) Customer’s Cloud Service Account, website, store, theme, code, content, products, configurations, or instructions; (c) use of the Software in combination with any product, service, software, data, content, process, or system not provided by BackupMaster; (d) modification of the Software by anyone other than BackupMaster; (e) use of the Software other than in accordance with this Agreement, the applicable Subscription Plan, or BackupMaster’s documentation; (f) Customer’s continued use of the allegedly infringing Software after BackupMaster provides a non-infringing replacement, modification, or workaround; (g) Beta Services; or (h) any Cloud Service Provider, third-party application, third-party platform, or open-source software component not owned by BackupMaster.
If BackupMaster believes that the Software infringes or may be alleged to infringe a third party’s Intellectual Property Rights, then BackupMaster may: (a) obtain the right for Customer, at BackupMaster’s expense, to continue using the Software; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Software so that it no longer infringes. If BackupMaster does not believe the options described in this section are commercially reasonable, then BackupMaster may suspend or terminate Customer’s use of the affected Service, with a pro-rata refund of prepaid fees for the Service.
The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent not to be unreasonably withheld or delayed, and (b) the other Party may join in the defense with its own counsel at its own expense.
This Section 9 states each Party’s sole and exclusive indemnification obligations under this Agreement. Sections 9.2 and 9.3 state Customer’s sole and exclusive remedy for any actual or alleged infringement or misappropriation of third-party Intellectual Property Rights by the Software.
SERVICE IS PROVIDED AS-IS WITHOUT WARRANTY OR CONDITION OF ANY KIND. BACKUPMASTER MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY, OR COMPLETENESS OF SERVICE OR DATA SYNCHED TO OR MADE AVAILABLE FROM SERVICE. BACKUPMASTER MAKES NO WARRANTIES OR CONDITIONS HEREUNDER AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF GOOD TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, BACKUPMASTER FURTHER DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, THAT SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF SOFTWARE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE FROM HARMFUL COMPONENTS. BACKUPMASTER ALSO DISCLAIMS ALL RESPONSIBILITY FOR ANY ACT OR OMISSION OF ANY CLOUD SERVICE PROVIDER OR OTHER THIRD-PARTY PROVIDER. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SERVICES IS AUTHORIZED UNDER THIS AGREEMENT EXCEPT UNDER THIS DISCLAIMER.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BACKUPMASTER AND ITS EMPLOYEES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, DAMAGE TO DATA OR CUSTOMER SYSTEMS, COST OF PROCURING REPLACEMENT PRODUCTS, LOSS OF PROFIT, BUSINESS INTERRUPTION OR ANY AND ALL OTHER COMMERCIAL OR ECONOMIC DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) ON WHICH THE CLAIM IS BASED. BACKUPMASTER IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF THE COLLECTION, RETENTION, USE, PROCESSING, AND DISCLOSURE BY CUSTOMER OF CUSTOMER DATA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BACKUPMASTER’S CUMULATIVE LIABILITY TO CUSTOMER AND TO ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER FOR DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING ANY LIABILITY UNDER ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) ON WHICH THE CLAIM IS BASED, SHALL BE LIMITED TO NO MORE THAN THE SUBSCRIPTION FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. FOR FREE ACCESS SUBSCRIPTIONS, TRIALS, OR BETA SERVICES, BACKUPMASTER’S TOTAL LIABILITY WILL NOT EXCEED, IN AGGREGATE, FIFTY U.S. DOLLARS ($50).
EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY BACKUPMASTER’S SERVICE, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Nothing in this Agreement excludes, restricts, or modifies any guarantee, condition, warranty, right, or remedy that Customer may have under the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) or any other applicable law, where doing so would be unlawful (“Non-Excludable Rights”). To the maximum extent permitted by law, where BackupMaster is liable for a breach of a Non-Excludable Right in connection with the supply of services, and the relevant law permits BackupMaster to limit that liability, BackupMaster’s liability is limited at its option to: (a) supplying the Service again; or (b) paying the cost of having the Service supplied again. The exclusions and limitations elsewhere in this Agreement apply subject to this section.
To the maximum extent permitted by applicable law, any claim or cause of action arising out of or relating to this Agreement or the Service must be commenced within twelve (12) months after the event giving rise to it first occurs; otherwise, that claim or cause of action is permanently barred.
Any recovery by Customer against BackupMaster’s affiliates, or against the directors, officers, or employees of BackupMaster or its affiliates, taken together with any recovery against BackupMaster, will not exceed the limits set out in this Section 11. Customer will not seek to recover from any of them any amount in excess of those limits.
Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party. If a dispute is not resolved within thirty (30) days of notice, Customer or BackupMaster may bring a formal proceeding.
Customer and BackupMaster agree to resolve any claims relating to this Agreement or the Service through final and binding arbitration, except as set forth below. This includes disputes arising out of or relating to the interpretation or application of this “Arbitration” subsection, including its scope, enforceability, revocability, or validity. The Australian Centre for International Commercial Arbitration (ACICA) will administer the arbitration under its Arbitration Rules. The arbitration will be held in Sydney (New South Wales, Australia), or any other location both Parties agree to in writing. The arbitrator may award relief only individually and only to the extent necessary to redress Customer’s or BackupMaster’s individual claim(s); the arbitrator may not award relief on behalf of others or the general public.
Either Party may bring a lawsuit in the District Court of New South Wales, Australia, solely for injunctive relief to stop unauthorized use or abuse of the Service or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and BackupMaster consent to the venue and personal jurisdiction there. In addition, either Party may bring an individual claim in a small-claims court or tribunal in Australia, if the claim qualifies for resolution there, instead of proceeding in arbitration.
To the maximum extent permitted by applicable law, Customer may resolve disputes with BackupMaster only on an individual basis and will not bring a claim in a class, consolidated, or representative action. To the extent permitted by law, class arbitrations, class actions, and consolidation with other arbitrations are not allowed.
If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
BackupMaster may revise this Agreement from time to time. The current version will always be posted on the BackupMaster Website together with the date on which it takes effect, and Customer is responsible for reviewing it. For changes that materially and adversely affect Customer, BackupMaster will provide notice at least thirty (30) days before the changes take effect by posting the updated Agreement on the BackupMaster Website and by providing an in-product notice or notice to the contact information associated with Customer’s account. By continuing to access or use the Service after the revised Agreement takes effect, Customer agrees to be bound by it. If Customer does not agree to a change, Customer’s sole remedy is to cancel and stop using the Service before the change takes effect.
This Agreement supersedes any prior agreements or understandings between the Parties and constitutes the entire agreement between the Parties related to this subject matter. BackupMaster’s Privacy Policy, Data Processing Addendum, and Order Forms executed by the Parties are hereby incorporated into this Agreement by this reference.
If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the Order Form, and then this Agreement. Customer agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
This Agreement is governed by the laws of New South Wales, Australia, without regard to conflict of laws principles.
Unenforceable provisions will be modified to reflect the Parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of this Agreement will remain in full effect.
A waiver of any default is not a waiver of any subsequent default.
Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of BackupMaster, except that Customer may assign this Agreement to the surviving entity in connection with a merger, acquisition, or sale of all or substantially all of its assets by providing written notice to BackupMaster. BackupMaster may not assign this Agreement without providing notice to Customer, except BackupMaster may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
BackupMaster and Customer are not legal partners or agents, but are independent contractors.
Customer consents to BackupMaster’s appointment of Sub-processors to perform the Service. BackupMaster remains responsible for its Sub-processors’ performance of their subcontracted obligations under this Agreement, and, with respect to Personal Data, remains liable for its Sub-processors as required by the Data Processing Addendum and applicable law.
Except for payment obligations, neither BackupMaster nor Customer will be liable for any delay, failure, or inadequate performance to the extent caused by a condition beyond that party’s reasonable control, including natural disasters, acts of war or terrorism, riots, labor conditions, governmental actions, internet or telecommunications disturbances, denial-of-service attacks, cyberattacks, Cloud Service Provider outages or restrictions, app marketplace restrictions, payment provider failures, API outages or limitations, or other causes beyond that party’s reasonable control.
There are no third-party beneficiaries to this Agreement.
Except as otherwise provided in this Agreement (including Section 13.1), notices under this Agreement must be in writing. BackupMaster may give notice to Customer by email to the address associated with Customer’s Account, by an in-product notice, or by posting on the BackupMaster Website. Customer must give notice to BackupMaster by email to support@backupmaster.io. A notice is deemed received when sent or, if sent outside the recipient’s normal business hours, on the next business day. Customer is responsible for keeping its Account contact information current.
“Agreement” means, collectively, this Terms of Service, BackupMaster’s Privacy Policy, and Data Processing Addendum.
“Beta Services” means services or features identified as alpha, beta, preview, early access, or evaluation or words or phrases with similar meanings.
“Claim” means a claim by a third party, including a regulatory penalty.
“Cloud Service” means a third-party software-as-a-service offering that is supported by the Service and that Customer has subscribed for with the applicable Cloud Service Provider.
“Cloud Service Provider” means the third-party provider of a Cloud Service.
“Confidential Information” means information disclosed by one Party to the other Party that is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any performance information relating to the Service shall be deemed Confidential Information of BackupMaster without any marking or further designation.
“Customer’s Account” means an administrative account provided to Customer by BackupMaster for the purpose of administering the Service.
“Customer’s Cloud Service Account” means the account that Customer has with the applicable Cloud Service Provider.
“Customer Data” means all data, including all text, sound, video, or image files, and software, that are provided to BackupMaster by, or on behalf of, Customer through the use of the Service.
“Customer Domains” means Customer’s Internet domain names.
“Data Processing Addendum” or “DPA” means the data processing agreement set forth at the following link: DPA or other link that BackupMaster may provide.
“Disclosing Party” means the Party disclosing Confidential Information to the other Party.
“Effective Date” means the date this Terms of Service is entered into by the Parties, either by acceptance online or by the signing of a Subscription Plan.
“EU Data Protection Laws” means, to the extent in force and applicable from time to time, those laws implementing the EU General Data Protection Regulation (2016/679) and any implementing laws in each EU member state.
“Feedback” means any feedback, comments, or suggestions on the Service that Customer may send BackupMaster. Feedback may include oral or written comments, suggestions, error reports, and analysis.
“Fees” means the amounts invoiced to Customer by BackupMaster.
“Initial Service Term” means the term for the Service beginning on the Provisioning Date and continuing for the duration set forth in the Order Form.
“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
“Order Form” means the user interface through which Customer purchases a subscription to the Service or enables access to the Service.
“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Process” and “Processing” have the meaning given to those terms in the EU Data Protection Laws.
“Provisioning Date” is the date upon which BackupMaster makes the Service available to Customer.
“Receiving Party” means the Party receiving Confidential Information from the other Party.
“Renewal Term” means, unless otherwise agreed to in writing by the Parties, the renewal term of the same duration as the Initial Service Term or preceding Renewal Term.
“Security Emergency” means: (i) use of the Service that does or could disrupt the Service, other customers’ use of the Service, or the infrastructure used to deliver the Service; or (ii) unauthorized third-party access to the Service.
“Security Policy” means the technical and organizational security measures implemented by BackupMaster for the Service, as set out on the BackupMaster Security Policy page.
“Security Resources” means any webpages, resources, guides, and whitepapers regarding technical or organizational measures that BackupMaster has implemented for the Service.
“Service” means the backup, storage, restoration, transfer, export, import, and related data protection workflows for Customer Data made available to Customer under the applicable Subscription Plan or Order Form.
“Service Term” means the Initial Service Term and all Renewal Terms for the Service.
“Subscription Fee(s)” or “Fee(s)” means the monthly, annual, and/or multi-year fees payable, as applicable, by Customer for the use of the Service as set forth on the Website (as defined below) or the applicable Order Form;
“Subscription Plan” means the subscription plan for the Service offered by BackupMaster and selected by Customer through the Order Form or online subscription process;
“Subscription Plan Limits” means limits on Customer’s use of the Service as described in the applicable Order Form or product description page.
“Software” means the BackupMaster software platform made available on a software-as-a-service basis by BackupMaster to provide the Service;
“Stored Data” means Customer Data stored by BackupMaster in connection with the Service.
“Sub-processor” means an entity that agrees to Process Customer Data on BackupMaster’s behalf in order to deliver the Service.
“Term” means the term of this Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of all applicable Service Terms; or (ii) this Agreement is terminated as set forth herein.
“Website” or “BackupMaster Website” means the website owned and operated by BackupMaster and located at https://backupmaster.io/.