Terms & Conditions

This BackupMaster Terms of Service, along with BackupMaster’s Privacy Policy, Security Policy, Data Processing Addendum, and Standard Contractual Clauses (collectively referred to as “Agreement”) between the entity identified as the customer on the order form (“Customer”) and BackupMaster (“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 Service. By subscribing to Service, Customer hereby agrees to the terms and conditions of this Agreement.

If you agree to this Agreement for the use of 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.

1. Service

1.1 Description. BackupMaster provides cloud-based Software on a software-as-a-service basis for backing up and restoring Customer’s Cloud Service Account. By subscribing to BackupMaster Service, Customer links Software to Customer’s Cloud Service Account. Software copies Customer Data from Customer’s Cloud Service Account at least once per day and saves Customer Data in the BackupMaster cloud-based storage (“Storage”). Customer may also manually start such a backup process at any time. All Customer Data transfers are encrypted, Customer Data in Storage is encrypted at rest. Customer can access any version of Customer Data saved in Storage and restore Customer Data to Customer’s Cloud Service Account. Customer can restore specific items of Customer Data granularly, or Customer may restore all saved Customer Data in bulk to Customer’s Cloud Service Account. Certain Subscription Plans may have additional features which are fully described on the subscriptions page.

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.

1.2 License Grant. 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 Service for its internal business purposes. The Service may be used by Customer to back up Customer’s Cloud Service Account so that Customer Data can be restored to the Customer’s Cloud Service Account in the event that any of the Customer Data is deleted from Customer’s Cloud Service Account, corrupted, moved, or otherwise compromised. Use of Service requires Customer to implement the integration of Service with Cloud Service by following such steps as are set out on Customer’s Cloud Service Account in this respect.

1.3 Changes to Service. BackupMaster may update Service from time to time.

2. Subscriptions

2.1 Service Term. Service is sold on a subscription basis. BackupMaster will deliver Service to Customer for Service Term.

2.2 Automatic Renewals and Trials. Customer’s subscription to Service will automatically renew for 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 Service.

Customer may upgrade or downgrade in subscription level at any time. Customer may elect to terminate Agreement by uninstalling Software from Customer’s Cloud Service Account. When Customer uninstalls Software, Subscription will be canceled automatically.

BackupMaster may revise Service rates by providing Customer at least thirty days notice prior to the next charge.

2.3 Payment. Customer will pay Subscription Fees on the payment interval set forth in Order Form depending on 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 Service Term. Subscription Fees are invoiced through Customer’s Cloud Service Provider in accordance with the terms of Cloud Service Provider’s invoice. Subscription Fees are payable in USD.

BackupMaster may suspend or terminate Service if Fees are past due. Customer will provide complete, accurate, and up-to-date billing and credit card information to Customer’s Cloud Service 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 Service hereunder.

2.4. No Refunds. Subscription Fees are non-refundable and non-creditable, except where required by law. BackupMaster subscription may be canceled, and such cancellations take effect immediately.

2.5 Suspension. BackupMaster may suspend Customer’s access to Service if: (i) Customer’s Subscription Fees are past due; or (ii) Customer has exceeded any Service Limits. BackupMaster may also suspend Customer’s access to 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.

3. Customer Obligations

3.1 Unauthorized Use or Access. Customer will prevent unauthorized use or access to Service. Customer will promptly notify BackupMaster of any unauthorized use of or access to Service.

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 UNDERS 13 RESIDING IN THE UNITED STATES, OR 16 IF THEY RESIDE ANYWHERE ELSE, TO USE SERVICE.

3.2 Restrictions and Compliance. Customer will not use or permit Service to be used for any illegal or misleading purpose.

Customer will comply with laws and regulations applicable to Customer’s use of 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) Service are 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 BackupMaster Security Policy and Agreement.

3.3 Acceptable Use Policy. Customer agrees not to misuse BackupMaster Service or help anyone else to do so. Except as otherwise expressly permitted in this Agreement, Customer shall not and shall not permit any other individual or entity to:

disseminate any code, files, scripts, agents, or programs intended to do harm, including without limitation any viruses, trojan horses, worms, or time bombs;

customize, modify or create any derivative works of Service or BackupMaster’s materials

access, tamper with, or use non-public areas or parts of Service;

decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for Service;

copy, reproduce, distribute, modify, or in any other manner duplicate Service, in whole or in part;

remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in Service;

access or use Service to create a product that is similar to and/or competitive with Service, unless specifically authorized in writing to do so by BackupMaster;

circumvent Subscription Plan limits;

taking any action which may affect the smooth operation of Service, including unduly burdening BackupMaster’s systems

harass or abuse BackupMaster personnel or representatives;

violate any applicable law, rule, regulation, or order, including, without limitation, laws governing personal information and privacy.

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 Service, or terminating an account.

3.4 Third-Party Apps and Integrations. If Customer uses any third-party service or applications with Service: (a) BackupMaster will not be responsible for any act or omission of the third-party, including the third-party’s access to or use of Customer Data; and (b) BackupMaster does not warrant or support any service provided by the third-party.

4. Customer Data

4.1 Customer Data Use. 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 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.

4.2 Data Storage. 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.

4.3 Security Policy. 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. Customers can find additional information regarding BackupMaster’s security practices for Service by visiting BackupMaster Security Policy page and reviewing any applicable Security Resources.

4.4 Data Processing Addendum. To the extent Customer Data comprises Personal Data that is processed by BackupMaster on Customer’s behalf, Customer and BackupMaster agree to 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”)).

4.5 Personal Data. The categories of Personal Data to be processed by BackupMaster and the processing activities to be performed under this Agreement are set out in 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 BackupMaster Data Processing Addendum and BackupMaster Privacy Policy that may be amended by BackupMaster from time-to-time, and shall be incorporated into and form part of this Agreement.

4.6 Auditing and Inspecting. BackupMaster will make available to Customer on request all information necessary to demonstrate compliance with security policies, procedures, and controls for Customer Data Protection in accordance with BackupMaster Privacy Policy and BackupMaster Data Processing Addendum and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer.

4.7 Data Processing. 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, Standard contractual clauses (SCCs) are in place with Customers whose Personal Data are transferred between EU and non-EU countries.

4.8 Takedown Requests. If Customer receives any take-down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with 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.

5. Confidential Information

5.1 Use and Non-Disclosure. 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.

5.2 Exceptions. Confidential Information does not include information that: (i) is or becomes generally known or available to the public, through no act or omission of 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; (iv) or is independently developed without access to any Confidential Information of Disclosing Party.

6. Intellectual Property Rights

6.1 Reservation of Rights. Except as expressly set forth herein, Agreement does not grant (a) BackupMaster any Intellectual Property Rights in Customer Data; or (b) Customer any Intellectual Property Rights in Service or BackupMaster trademarks and brand features. Customer acknowledges that it is obtaining only a limited right to use 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.

6.2 Limited Permission. Customer grants BackupMaster only the limited rights that are reasonably necessary for BackupMaster to deliver Service. This limited permission also extends to Sub-processors.

6.3 Feedback. BackupMaster may use, modify, and incorporate into its 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.

7. Beta Services

7.1 Use In Customer’s Discretion. Despite anything to the contrary in 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 Services; (c) Beta Services have not been subjected to the same Security Policy and auditing to which Services have been subjected, and (d) BackupMaster will have no liability arising out of or in connection with Beta Services – use at your own risk.

7.2 Feedback. 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.

8. Term & Termination

8.1 Agreement Term. The Agreement will remain in effect for the Term.

8.2 Termination. Either Party may terminate Agreement, including all Order Forms, if: (i) the other Party is in material breach of the Agreement and fails to cure that breach within thirty 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 Service if required to do so by law or for an egregious violation by Customer of Acceptable Use Policy.

8.3 Effects of Termination. If 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.

8.4 Survival. The following sections will survive the expiration or termination of Agreement: Payment, Intellectual Property Rights, Effects of Termination, Survival, Indemnification, Disclaimers, Limitation of Liability, Disputes, and Miscellaneous.

9. Indemnification

9.1 By Customer. 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 any Claim against BackupMaster regarding (a) Customer Data; (b) Customer Domains; (c) Customer’s use of Service in violation of Agreement.

9.2 By BackupMaster. BackupMaster will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any Claim against Customer to the extent based on an allegation that BackupMaster’s technology used to deliver Service to Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will BackupMaster have any obligations or liability under this section arising from (a) use of any Service in a modified form or in combination with materials not furnished by BackupMaster; and (b) any content, information, or data provided by Customer, or third parties.

9.3 Possible Infringement. If BackupMaster believes that Service 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 Service; (b) provide a non-infringing functionally equivalent replacement, or (c) modify Service so that they no longer infringe. 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 Service.

9.4 General. 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 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. The indemnities above are BackupMaster and Customer’s only remedy under Agreement for violation of the other party of a third party’s intellectual property rights.

10. Disclaimers

10.1 Generally. 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.

11. Limitation of Liability

11.1 Limitation on Indirect Liability. 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, PROCESS, AND DISCLOSURE BY CUSTOMER OF CUSTOMER DATA.

11.2 Limitation on Amount of Liability. EXCLUDING ITS OBLIGATIONS SET FORTH IN THE SECTION ABOVE (BACKUPMASTER INDEMNIFICATION), BACKUPMASTER’S CUMULATIVE LIABILITY TO CUSTOMER OR TO ANY OTHER PARTY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, 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).

11.3 Failure of Essential Purpose. 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.

12. Disputes

12.1 Informal Resolution. Before filing a claim, each Party agrees to try to resolve the dispute by contacting other Party. If a dispute is not resolved within thirty days of notice, Customer or BackupMaster may bring a formal proceeding.

12.2 Arbitration. Customer and BackupMaster agree to resolve any claims relating to Agreement or 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.

12.3 Exception to Arbitration. 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.

12.4 No class actions. Customer may only resolve disputes with BackupMaster on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

12.5 Severability. 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.

13. Miscellaneous

13.1 Agreement Modification. BackupMaster may revise this Agreement from time to time, and the most current version will always be posted on BackupMaster Website. Customer is responsible for checking these postings regularly. By continuing to access or use Service after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate Service within thirty days of receiving notice of the change.

13.2 Entire Agreement. Agreement supersedes any prior agreements or understandings between Parties and constitutes the entire agreement between Parties related to this subject matter. BackupMaster’s Privacy Policy, Security Policy, Data Processing Addendum, Standard Contractual Clauses, and Order Forms executed by Parties are hereby incorporated into Agreement by this reference.

13.3 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up Agreement, the documents will control in the following order: the invoice, Order Form, Agreement. The terms and conditions of Agreement will be considered Confidential Information of BackupMaster. Customer agrees that any terms and conditions on a Customer purchase order will not apply to Agreement and are null and void.

13.4 Governing Law. THE AGREEMENT WILL BE GOVERNED BY AUSTRALIAN CONTRACT LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.

13.5 Severability. 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 Agreement will remain in full effect.

13.6 Waiver. A waiver of any default is not a waiver of any subsequent default.

13.7 Assignment. Customer may not assign or transfer Agreement or any rights or obligations under Agreement without the written consent of BackupMaster, except that Customer may assign 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 Agreement without providing notice to Customer, except BackupMaster may assign Agreement or any rights or obligations under Agreement to 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.

13.8 No Agency. BackupMaster and Customer are not legal partners or agents, but are independent contractors.

13.9 Sub-processors. Customer consents to BackupMaster’s appointment of Sub-processors, to perform Service. BackupMaster will remain liable for all acts or omissions of its Sub-processors, and for any subcontracted obligations.

13.10 Force Majeure. Except for payment obligations, neither BackupMaster nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond Party’s reasonable control (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).

13.11 No Third-Party Beneficiaries. There are no third-party beneficiaries to Agreement.

14. Definitions and Interpretation

“Agreement” means, collectively, this Terms of Service, BackupMaster’s Privacy Policy, GDPR Data Processing 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 Service and that Customer has subscribed for with the third-party provider.

“Confidential Information” means information disclosed by one Party to other Party that is identified as confidential at the time of disclosure or should be reasonably known by 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 Service and the terms and conditions of this Agreement 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 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 using of 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 Party disclosing Confidential Information to other Party.

“Effective Date” means the date this Terms of Service is entered into by Parties, either by acceptance online or by the signing of 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 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 Service beginning on Provisioning Date and continuing for the duration set forth on 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 Service or enables access to 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 Service available to Customer.

“Receiving Party” means Party receiving Confidential Information from other Party.

“Renewal Term” means, unless otherwise agreed to in writing by Parties, the renewal term of the same duration as Initial Service Term or preceding Renewal Term.

“SCCs” or “Standard Contractual Clauses” means (i) the standard contractual clauses between controllers and processors adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021 and currently located here (the “2021 Controller-to-Processor Clauses”); or (ii) the standard contractual clauses between processors adopted by the European Commission in its Implementing Decision (EU) 2021/91 of 4 June 2021, and currently located here (the “2021 Processor-to-Processor Clauses”); as applicable in accordance with BackupMaster Data Processing Addendum.

“Security Emergency” means: (i) use of Service that does or could disrupt Service, other customers’ use of Service, or the infrastructure used to deliver Service; or (ii) unauthorized third-party access to Service.

“Security Policy” means the technical and organizational security measures implemented by BackupMaster for Service as it is set in the BackupMaster Security Policy page.

“Security Resources” means any webpages, resources, guides, and whitepapers regarding technical or organizational measures that BackupMaster has implemented for Service.

“Service” means the copying, encryption, backup, and restoration of Customer Data for Customer’s Account as it is ordered by Customer in Order Form.

“Service Term” means Initial Service Term and all Renewal Terms for 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 Service as set forth on Website (as defined below) or the applicable Order Form;

“Subscription Plan” means the subscription plan for Service offered by BackupMaster and selected by Customer through Order Form or online subscription process;

“Subscription Plan Limits” means limits on Customer’s use of Service as described in the applicable Order Form or product description page.

“Software” means the BackupMaster software platform as made available on a software-as-a-service basis by BackupMaster to provide Service;

“Stored Data” means the files uploaded to Service by Customer.

“Sub-processor” means an entity who agrees to Process Customer Data on BackupMaster’s behalf in order to deliver Service.

“Term” means the term of Agreement, which will begin on Effective Date and continue until the earlier of (i) the end of all applicable Service Terms; or (ii) 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/.