sales@triplebackup.com.au
Triplebackup License and Services Agreement
Preamble
Important - read the following terms and conditions carefully before proceeding with the downloading and/or installation of this software product. This is the License and Services Agreement that you are required to accept before downloading, installing and using Triplebackup software or accessing any related services.
By selecting the "I agree" option and installing the Software or otherwise accessing any of the Services, you consent to be bound by and are a party to this Agreement. If you do not agree with all of the terms and conditions of this Agreement, do not download the Software or access any of the Services.
1. The Software and Services
This License and Service Agreement ("Agreement") is a legal agreement between you, either an individual or a single legal entity (" you" or "Licensee"), and BackMii Pty Ltd ACN 134 158 044 trading as Triplebackup ("Triplebackup"). This Agreement governs your use of the Triplebackup Backup Client software distributed with this Agreement, including bug fixes, error corrections, patches, new releases, or updates provided to you and any accompanying written documentation ("Software") and and all related services, including, without limitation, the Triplebackup Live Image, Triplebackup Online File & Folder Backup, Triplebackup Local Backup, Triplebackup Virtual Failover, Triplebackup Express and Triplebackup Archiving service ("Services").
You are the Licensee of the Software and Services. If you are a Licensee for Triplebackup, you are authorised to set up sub-account users (ie: other persons who are able to utilise the Software and Services through your account) ("Sub-Licensees"). However, you will at all times be responsible for ensuring that your Sub-Licensees comply with all terms and conditions of this Agreement and you indemnify Triplebackup against any action, claim, demand, loss, damage, cost, or expense which Triplebackup or any of its resellers, third party suppliers, contractors, agents, affiliates, directors, officers or employees ("Triplebackup Entities") suffers as a result of or in connection with your or your Sub-Licensees' failure to comply with this Agreement.
You are responsible for obtaining access to the Services and for any third party fees incurred in connection with obtaining such access (e.g. telecommunications connections and Internet service provider fees) and for obtaining all equipment necessary to access the Services.
2. Personal Information and access to information
You agree that Triplebackup and the Triplebackup Entities shall be entitled to use any personal information which Triplebackup may have access to pursuant to the transactions contemplated by this Agreement (including, without limitation, access which may be provided by you making use of the Software and the Services) in accordance with the terms of Triplebackup's Privacy Policy which may be accessed at http://www.triplebackup.com.au/privacypolicy.html.
3. Software License Grant
In consideration of the terms and conditions set forth in this Agreement, including, without limitation, payment of the Fees (as defined in clause 8 of this Agreement), Triplebackup: (i) grants you a non-exclusive and non-transferable licence to (a) install the Software on one or more computers under your management and control ("Installed Devices"); (b) use the Software and the Services for your own internal, end-use purposes only; and (ii) agrees to use commercially reasonable efforts to provide the Services to you.
You acknowledge that the Services may include the automatic electronic download of bug fixes, error corrections, patches, new releases, or updates to the Software from time to time ("Updates"), as determined in Triplebackup's sole discretion. You expressly consent to any and all actions taken by Triplebackup and its third party suppliers and contractors with respect to the provision of such Updates including any actions that directly affect the Installed Devices and associated hardware or software.
Updates may be available to you free of charge or for a fee. You may download and install Updates only to the extent that you hold a valid license to use the Software or Services being updated or upgraded, and you may use them only in accordance with the then-current Agreement and any additional license terms that may accompany them. If you do not install Updates, it may affect your ability to continue using the Services.
You acknowledge that the licence terms and all other terms of this Agreement shall apply to the Software and any Updates to the Software.
4. Ownership and Intellectual Property Rights
For the purposes of this Agreement, "Intellectual Property Rights" includes all current and future registered and unregistered rights, in Australia and throughout the world of:
(i) any copyright as well as all computer code or scripts, whether compiled or not in any computer language or program, trade or service mark, design, patent, petty patents, utility models, domain names, all rights in computer software and data, databases, confidential information of the Triplebackup Entities and any of their licensors, trade secrets and know how, and all intangible rights, or trade, business or company name, trade secrets, ideas, concepts, methods, algorithms, know-how and techniques, indication of source or appellation of origin, or other proprietary right; and
(ii) any right to registration, application for registration, renewals, extensions, continuations, divisions and reissuances associated with the rights described in (i) above.
All Intellectual Property Rights and all other right, title and interest in and to the Software, Services and any associated documentation, software or information provided by Triplebackup or any of the Triplebackup Entities or their licensors through or in conjunction with the Software or Services, at all times remains with, and is owned by Triplebackup or the Triplebackup Entities or their licensors, as the case may be.
All Intellectual Property Rights and all other right, title and interest subsisting now or in the future in any modification to the Software or Services whether undertaken by Triplebackup or any of the Triplebackup Entities or, if applicable, by you or on your behalf by a third party, and whether or not paid for by you, shall upon its creation be owned by Triplebackup or its nominated entity, and you assign to Triplebackup or its nominated entity all right, title and interest and all Intellectual Property Rights in any modification to and associated methodologies of the Software and Services.
No copying, redistribution, displaying, performing, reproducing, licensing, transferring or publication of the Software or any of the Services or their content is permitted without the express permission of Triplebackup, which consent shall be at Triplebackup's discretion. Any such copy which is made is subject to the provisions of this Agreement, and all titles, trademarks, copyright notices and other legends shall be reproduced on such copy.
All Intellectual Property Rights in the Software and the Services, including structure, organization, source code, and documentation contain valuable trade secrets of Triplebackup, the Triplebackup Entities and their licensors, and accordingly you agree not to (and agree not to allow third parties to) (i) sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party, (ii) modify, adapt, translate, or prepare derivative works of or from the Software or Service, (iii) decompile, reverse engineer, disassemble or otherwise attempt to derive source code of or from the Software or Services, (iv) extract portions of the Software's files for use in other applications, or (v) remove, obscure, or alter any titles, trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Services.
5. Acceptable Use of Software and Services
For the purposes of this Agreement:
(i) "Content" means any and all materials, including without limitation, information, data, software, music, sound, photographs, graphics, video, and email messages or other kinds of messages; and
(ii) "Access" means to upload, post, email, transmit, share, access or otherwise make available.
You agree as follows: (i) you will not sublicense, assign, resell, share, pledge, rent or transfer any of your rights under this Agreement in relation to the Software or any of the Services or any portion thereof, unless you have signed the Triplebackup Reseller Agreement, in which case you may resell the Services in accordance with the terms and conditions set out in that agreement; (ii) only the registered user of your account and its Sub-Licensees may use the Software and the Services; (iii) you are solely responsible for any Content on any computer that is linked to your account and Triplebackup reserves the right to remove from its servers any Content that may expose Triplebackup to potential liability; (iv) you are responsible for keeping your password and encryption key secure. You will be solely responsible and liable for any activity that occurs under your account. If you lose your user name, password or the encryption key for your account, you may not be able to access your data; (v) you will not ship, transfer or export the Software or Services into any other country, or use them in any manner prohibited by Australian, US or other applicable export laws and regulations; and (vi) you will comply with this Agreement and all laws and regulations applicable to your use of the Software and Services.
You acknowledge and agree that you, and not Triplebackup or any of the Triplebackup Entities, are solely responsible for all Content which you Access or allow others, directly or indirectly, to Access via the Software and the Services.
You agree that you will not use the Software or Services for the purposes of or to Access any Content that: (i) is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another's privacy, hateful, racially, ethnically or otherwise objectionable or generally unlawful including, without limitation, child pornography; (ii) you do not have a right to make available under any law or any contractual or other legal or equitable obligation; (iii) infringes any copyright, trade-mark, trade secret or other intellectual property or proprietary rights of any third party; (iv) otherwise contravenes or violates any applicable law; (v) contains viruses, Trojan horses, worms, time bombs, or similar harmful programming routines; (vi) may damage, disable, overburden or impair either the Services or the networks connected to the Services or any other service; (vii) may allow you to gain unauthorized access to the Service, including but without limitation, through hacking or password mining; and (viii) may allow you to collect confidential or personal information about third parties, including and without limitation, e-mail addresses.
You acknowledge and agree that Triplebackup and the Triplebackup Entities do not control any Content which is Accessed via the Services and, as such, they do not guarantee the accuracy, integrity or quality of such Content. Under no circumstances is Triplebackup or any of the Triplebackup Entities liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of or reliance upon any Content which is Accessed via the Services.
Triplebackup does not pre-screen Content. You consent to Triplebackup accessing, preserving, and disclosing your account information and Content if required to do so by law or in the good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the terms of this Agreement; or (iii) respond to your requests for customer service.
Notwithstanding anything to the contrary in this Agreement, Triplebackup reserves the right, in its sole discretion, to refuse or remove any or all of your Content that is available via the Services or to close your account in the event that it is required to do so by law or in the good faith belief that such action is reasonably necessary to: (i) comply with legal process; (ii) enforce the terms of this Agreement.
You acknowledge that the technical processing and transmission of the Services, including the transmission of Content, may involve transmissions over various public networks which are not secure. You consent to and accept the consequences of any loss or damage suffered as a result of such transmission.
You acknowledge that you need to keep your password secure to protect your information. In addition, you acknowledge that if you use the optional user encryption key, and you lose your password, Triplebackup is unable to replace it or to decrypt your stored data.
You agree to indemnify and hold Triplebackup and the Triplebackup Entities, harmless from all claims, liabilities, damages, losses, including reasonable legal fees and expenses, due to or arising out of or in connection with your or any of your Sub-Licensees' use of the Software and the Services in breach of this Agreement or in connection with any claim or demand made by any third party due to or arising out of Content Accessed by your or your Sub-Licensees' use of the Services.
6. Changes to the Service, Agreement and Software
Triplebackup reserves the right at any time to modify, suspend, or cease providing the Services or any part thereof in its sole discretion.
Triplebackup will use commercially reasonable efforts to notify you of modification, suspension, or cessation of the Service by sending an email to the email address you provide with your registration or by notifying your service provider which will notice to you. In no event will Triplebackup be liable to you or to any third party for any modification, suspension or discontinuance of the Services with or without notice. Triplebackup reserves the right at any time to modify this Agreement in its sole discretion. This Agreement, as amended, will be effective immediately upon posting of the amended Agreement at www.triplebackup.com.au. You agree to be bound by this Agreement, as modified.
If you wish to cancel your Triplebackup license after a change in the Agreement, you must do so by email to legal@triplebackup.com.au within seven (7) calendar days after the change in the Agreement. The date on which Triplebackup receives your notice will be the Termination Date.
You acknowledge and agree that if you do elect to cancel your license within this specified period after a change in the Agreement, or if you cancel your license or fail to renew an expired or terminated license for any reason, Triplebackup will use commercially reasonable efforts to make your Content available for you to download for a period of fourteen (14) calendar days, after which time Triplebackup will not have any backup data available for your use.
7. Triplebackup's obligations
In consideration for payment of the Fees set out in clause 8 and compliance with your obligations under this Agreement, Triplebackup will provide the Services to you, subject to the following:
(i) you will not be able to restore Content: (a) that Triplebackup has not completed copying; or (b) that has been changed on your nominated device(s) but not yet backed up via the Services; or (c) that you have elected not to backup; or (d) operating systems, applications and trash cans;
(ii) Triplebackup will use reasonable commercial endeavours to maintain copies of your Content saved on multiple separate servers; however, it is possible that on some occasions one or more servers, or some part of the data centre in which our servers are housed or one or more networks may fail, and it is possible that in an extreme circumstance, there may be zero (0) copies of your Content; if such circumstances arise, Triplebackup will, as soon as practicable after it becomes aware of the circumstances, use commercially reasonable efforts to create a replacement back-up from the files stored on your computer;
(iii) you are responsible for providing the technical infrastructure to support the performance requirements of the Software and Services and for installing the computing and networking hardware and operating system and networking software necessary for you to utilise the Software and Services;
(iv) you acknowledge that the Services provide a backup service for your Content and should not be utilised as the primary repository for your Content;
(v) You agree to notify Triplebackup if you believe you have suffered any data loss under the Services within seven (7) calendar days of noticing such loss by emailing legal@triplebackup.com.au; and
(vi) Should you suffer a data loss under the Services, you agree to give best efforts assistance to Triplebackup in relation to any of their investigations into the data loss.
8. Payment of Fees
In consideration of the Services provided to you by Triplebackup and your use of the Software, you agree to comply with all terms of this Agreement and to pay Triplebackup the then applicable licence fees and any additional usage fees on the terms and conditions set out in your invoice ("Fees"), together with all applicable taxes.
Fees are due and payable upon your installation of the Software and are non-refundable.
Triplebackup Services are an automatically renewing service. Unless you cancel or notify Triplebackup that you do not want your account to auto-renew, you agree that the Agreement automatically renews for another year, and the annual or monthly subscription Fees will be due and payable as invoiced to you and you agree to pay this charge. The Fees for renewals may be different than those paid for a prior subscription.
You may cancel your subscription, however, Fees for the Services are non-refundable. If you opt for a monthly payment plan, you may cancel your Services at any time however you acknowledge that you will not receive a refund of the annual Fees or any pro-rata portion thereof.
You may cancel your subscription to the Services prior to the renewal period by providing Triplebackup with thirty (30) calendar days written notice by e-mail to legal@triplebackup.com.au.
9. Term and Termination
This Agreement is effective upon installation of the Software and remains in effect until terminated in accordance with its terms.
You may cancel your subscription to the Services prior to the renewal period by providing Triplebackup with thirty (30) calendar days written notice by e-mail to legal@triplebackup.com.au. Upon termination you will destroy the Software and close your account by following the instructions at http://www.triplebackup.com.au. You agree to pay Triplebackup outstanding Fees, if any.
This Agreement and your user account may be immediately terminated by Triplebackup if you fail to comply with the terms and conditions of this Agreement, including failure to pay any applicable Fees when due and payable. In its sole discretion, Triplebackup may give you seven (7) calendar days from the date that Triplebackup's termination right arises to remedy your non-compliance. If you fail to remedy your non-compliance within the period then Triplebackup will be entitled to terminate this Agreement, your account and delete all of your and your Sub-Licensees' Content without further notice. If you remedy your non-compliance then Triplebackup will not terminate your licence or delete your or your Sub-Licensees' Content.
If Triplebackup terminates your license, you will receive no pro-rata refund for the unused portion of your Triplebackup license fees and you agree to pay any outstanding Fees payable to Triplebackup.
In the event that this Agreement is terminated, the user account for each of your Sub-Licensees will automatically terminate. You agree that, upon termination, you will (on behalf of yourself and each of your Sub-Licensees) destroy and permanently erase all copies of the Software in your possession or under your control, and that your access rights and those of your Sub-Licensees to the Services will immediately terminate.
If this Agreement terminates, other than for your failure to comply, Triplebackup will use commercially reasonable efforts to make your Content available for you to download for a period of fourteen (14) calendar days from the date of termination, after which time your and your Sub-Licensees' Content may be deleted by Triplebackup without further notice to you. You and your Sub-Licensees will be responsible for downloading any Content you or they require within this period.
You agree that if you mark any Content to no longer be backed-up, or delete any Content from your computer, this Content ( "Old Content") will no longer be backed up by Triplebackup. The Old Content will remain on the Triplebackup servers for a period of thirty (30) calendar days from the date that the Old Content was last backed up. After the thirty (30) calendar day period has expired, and without further notice to you, the Old Content will be deleted from the Triplebackup servers and will no longer be available for you to restore, unless you have elected to archive this Old Content with Triplebackup Archiving, in which case this Old Content and any other content marked for Triplebackup Archiving will be stored on Triplebackup's servers and be accessible by you for the period that you elect to archive.
Unless otherwise provided in this Agreement, you agree that Triplebackup may retain (but shall have no obligation to retain) your and, or, your Sub-Licensees' Content for a period after this Agreement has been terminated, expired, or otherwise lapsed. Any Content retained by Triplebackup will not be used for any purpose other than to enable Triplebackup to comply with its obligations under this Agreement and all applicable laws and regulations.
10. Exclusion of Warranties
NOTHING IN THIS AGREEEMENT, INCLUDING SECTIONS 10 AND 11, SHALL EXCLUDE OR LIMIT TRIPLEBACKUP'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND THE LIABILITY OF TRIPLEBACKUP AND THE TRIPLEBACKUP ENTITIES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE AND ALL SERVICES IS AT YOUR SOLE RISK AND THAT THE SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED.
YOU EXPRESSLY WARRANT THAT YOU HAVE ALL THE NECESSARY LICENSES TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO, MICROSOFT LICENSES REQUIRED FOR TRIPLEBACKUP VIRTUAL FAILOVER SERVICES.
IN PARTICULAR, TRIPLEBACKUP, THE TRIPLEBACKUP ENTITIES , AND THEIR LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (i) YOUR USE OF THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (iii) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SOFTWARE OR SERVICES WILL BE ACCURATE OR RELIABLE, AND, (iv) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
ANY CONTENT ACCESSED THROUGH THE USE OF THE SOFTWARE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICES OR LOSS OF DATA THAT RESULTS FROM THE ACCESS OF ANY CONTENT.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TRIPLEBACKUP, THE TRIPLEBACKUP ENTITIES, OR THROUGH OR FROM THE SOFTWARE OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
TRIPLEBACKUP FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
The liability of Triplebackup and the Triplebackup Entities for any breach of any condition, warranty or other obligation which is implied into this Agreement by any applicable legislation for the time being in force which cannot be excluded by agreement, shall not exceed, at Triplebackup's option: (i) in the case of the supply of goods: (a) the replacement of the goods or the supply of equivalent goods; or (b) the repair of the goods; or (c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (d) the payment of the cost of having the goods repaired; or (ii) in the case of the supply of services: (a) the supply of the services again; or (b) the payment of the cost of having the services supplied again.
11. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL TRIPLEBACKUP, OR THE TRIPLEBACKUP ENTITIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOST PROFIT, DATA, SAVINGS OR REVENUE ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICES, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, (EVEN IF TRIPLEBACKUP OR ANY OF THE TRIPLEBACKUP ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF TRIPLEBACKUP AND THE TRIPLEBACKUP ENTITIES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE (EVEN IF TRIPLEBACKUP OR ANY OF THE TRIPLEBACKUP ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO TRIPLEBACKUP FOR THE SOFTWARE AND SERVICES IN THE SIX (6) MONTHS PRIOR TO THE DATE ON WHICH THE ALLEGED LOSS OR DAMAGE WAS SUFFERED BY THE CLAIMANT. IF THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT CHARGE, THEN TRIPLEBACKUP AND THE TRIPLEBACKUP ENTITIES SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF OR RELIANCE ON THE SOFTWARE OR SERVICES, FROM INABILITY TO USE THE SOFTWARE, SERVICES, OR ANY CONTENT, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY, INCLUDING, WITHOUT LIMITATION, NUCLEAR, AVIATION, TECHNICAL BUILDING OR STRUCTURAL DESIGN, POWER PLANT DESIGN OR OPERATION, LIFE SUPPORT OR EMERGENCY MEDICAL OPERATIONS OR USERS, MASS TRANSIT, OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND YOU AGREE THAT TRIPLEBACKUP WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE OR SERVICE.
12. US Government Restricted Right
The Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with s48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.
13. Force Majeure
TRIPLEBACKUP WILL NOT BE LIABLE TO YOU IN ANY WAY BY REASON OF ANY DELAYS OR FAILURE BY IT TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT WHICH IS CAUSED BY A FORCE MAJEURE EVENT.
IF A DELAY OR FAILURE BY TRIPLEBACKUP TO PERFORM ITS OBLIGATIONS DUE TO A FORCE MAJEURE EVENT EXCEEDS THIRTY (30) CALENDAR DAYS, TRIPLEBACKUP MAY IMMEDIATELY TERMINATE THIS AGREEMENT ON PROVIDING NOTICE IN WRITING TO YOU.
14. Notices
Any notice required to be given under this Agreement: (i) will be in writing addressed to the email address most recently notified by the recipient to the sender or by Triplebackup posting a notice on the website from which you access your Services, such posting shall constitute notice to you; and (ii) for email notice will be taken to have been given or made on the date on which it is received in the recipient's email account, but if delivery or receipt occurs on a day which is not a day on which banks are open for business in Sydney Australia ("Business Day") it will be taken to have been duly given or made at the start of business on the next Business Day or for notice posted on the website will be taken to have been given or made on the date on which it is posted.
15. Assignment and sub-contracting
Triplebackup may with prior written notification to the Customer assign this Agreement or any part of it or any money due under it to any Triplebackup Entity, or to any other third party.
Triplebackup may discharge its obligations under this Agreement using agents or sub-contractors but shall remain liable for their performance under this Agreement.
Your rights and obligations under this Agreement are personal and cannot be transferred by operation of law. You must not assign or charge this Agreement or your rights under it, whether voluntarily or by operation of law.
16. General Provisions
(i) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
(ii) Entire Agreement. This Agreement, which incorporates the Triplebackup Privacy Policy, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision or amendment of this Agreement will be effective only if in writing and signed by Triplebackup.
(iii) Survival. In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 3 (Software License Grant), Section 4 (Ownership and Intellectual Property Rights), Section 5 (Acceptable Use of Software and Services), Section 10 (Exclusion of Warranties), Section 11 (Limitation of Liability), Section 12 (U.S. Government Restricted Right), Section 13 (General Provisions) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.
(iv) Waiver. No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. This clause may only be waived in writing. A waiver by a party pursuant to this clause shall not prejudice its rights in respect of any subsequent breach of this Agreement by the other party.
(v) Severability. Any provision of this Agreement which is invalid or unenforceable in any jurisdiction is to be read down so as to be valid and enforceable if possible, or if that is not possible, will be ineffective in that jurisdiction to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this Agreement or the validity or enforceability of that provision in any other jurisdiction.
(vi) Dispute Resolution. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving New South Wales, Australia, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit Triplebackup from instituting an action in any court of competent jurisdiction to obtain injunctive relief to protect or enforce its Intellectual Property Rights.
(vii) Costs of enforcement. You agree to reimburse Triplebackup for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Triplebackup.
(viii) English Language. The parties agree that this Agreement was negotiated and written and shall be referenced solely in English.
(ix) Benefit of the Agreement. This Agreement is binding upon and shall enure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. Triplebackup holds all rights under this Agreement on trust for the Triplebackup Entities and may enforce any of those rights on behalf of any of the Triplebackup Entities.
(x) Stamp duty. You are responsible for any stamp duty payable on or in respect of this Agreement and on any instruments entered into pursuant to this Agreement.