Terms and Conditions
Subscribers to the criticaldata service automatically accept and agree to be irrevocably bound to the Standard Terms & Conditions as set out and available for download below.
Standard Terms & Conditions
for use of the
criticaldata Aust. Offsite Backup Service
(hereinafter criticaldata)
criticaldata offers an offsite backup service, which involves the receipt of computer data from the Client via telecommunications and data communications channels and the storage of such data on computer and other equipment of criticaldata.
You (the Client) wish to use criticaldata’s service for the purpose of transmitting and storing your own data on criticaldata’s equipment for the period of this agreement.
This Agreement is valid for the agreed term from the agreed date and unless terminated by either party in writing two calendar months prior to the anniversary date shall automatically be renewed & continue on all the terms and conditions herein contained.
criticaldata will make storage capacity available to the Client on its systems equivalent to the agreed Storage Quota and the Client agrees to pay to criticaldata, in accordance with the terms and conditions for payment, the agreed remuneration for the service as specified.
For the purposes of this agreement 1 MB = 1000KB and 1GB = 1000MB. Storage capacity may be added at any time upon request in writing. Upon fulfilment of such request this Agreement will be considered to be so amended as to reflect the new agreed storage capacity and the agreed remuneration for the service shall be duly amended to reflect the amount due for the new service level. The remainder of this agreement shall remain unaffected in its entirety by any amendments to service level or pricing.
The agreed charge for the service consists of a licensing fee per User as well as a base service fee plus any data throughput fee as may be payable in accordance with the provisions below, such total charges to be paid monthly in advance.
You authorise and request criticaldata or its billing agent to debit your nominated account identified overleaf and in accordance with the payment details stated above. criticaldata will provide 14 days notice if the payment amount(s) or frequency of the payments vary for future debits. It is your responsibility to ensure that you have sufficient clear funds in your nominated account to enable the direct debit to be honoured by your financial institution. If your Direct Debit is dishonoured or returned by your financial institution, for any reason, criticaldata or its billing agent reserves the right to charge a dishonour fee, and re-present the Direct Debit for processing again on the next business day. Such authority shall stand pursuant to the terms and conditions of this Agreement as set out herein.
There shall be no fixed throughput fee charged for the first month of service. Thereafter in the event throughput in any one month is deemed excessive, criticaldata shall be entitled to charge for throughput an amount calculated at the rate of $0.01 per 1MB (one megabyte) of data traffic in excess of the Throughput Allocation and projected over the agreed payment period.
Your throughput will be deemed excessive in the event your data throughput in any one month exceeds the throughput allocated to your Agreement Period as provided for in the table below.
Throughput Allocation is defined as a percentage of your agreed storage capacity.Agreement Period CP1 CP2 CP3 Throughput Allocation 12.5% 20% 35% Any data throughput charge will be evaluated monthly. Data throughput assessments are based on the server logs of criticaldata. criticaldata shall not be obliged to produce in evidence or in support of the assessment any server logs or other records. criticaldata’s assessment will be final and binding upon presentation of criticaldata’s invoice. In the event this agreement has been terminated by the Client any deficit shall be settled and paid in full or similarly any surplus funds will be returned within thirty (30) days of the last day of the agreement. Termination of this agreement by either party does not in any way absolve or free the Client from payment of any deficit which may have accumulated during the term of the agreement.
The base service fee shall be fixed for the first six (6) months and may be subject to amendment by criticaldata at any time for any ensuing payment periods. Notification of amendments may be by way of publication of the new information by criticaldata on its website and/or by email or other written communication at criticaldata’s discretion. Notification will be provided by criticaldata at least one calendar month prior to such amendments coming into effect. In the event criticaldata provides such notice by email or other direct written communication there shall be no obligation on the part of criticaldata to verify the actual receipt of such notice and no liability shall attach to criticaldata in the event that such notice was not received, In the event the Client is unwilling to pay the increased monthly charge, the Client may terminate this Agreement upon giving notice of such termination to criticaldata at any time before such increased charges come into effect. Such notice of termination shall be given by the Client to criticaldata either by registered Post, or by email, provided that email notification shall only be considered effective for the purposes hereof if criticaldata acknowledges by email or otherwise in writing such email termination notification. Failure to notify criticaldata of the desire to terminate the agreement will constitute the Client’s consent to the increase and all other terms and conditions of the Agreement shall remain in full force and effect.
criticaldata will not be held liable or responsible for any loss, damage or injury suffered by the Client as a result of the failure of the Client’s systems to perform backups or restores at any time or due to third party services or solutions which inhibit the ability of the Client to perform backups or restores at any time, including but not limited to transmission errors, Client or third party IT infrastructure or routing.
It is acknowledged by the parties that, because of the nature of the services rendered and the system technology as a whole, it is impractical and extremely difficult to fix actual damages, if any, which may result from failure on the part of criticaldata to perform its responsibilities under this agreement. Nonetheless the Client agrees that criticaldata shall not except in the case of gross and wilful negligence be liable for any direct, indirect, incidental, special, consequential or exemplary damages whatsoever, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the inability to use the services, the cost of procurement of substitute goods and/or services, unauthorised access to or alteration of the Client’s transmissions or data, or any other matter relating to the service. And in the case criticaldata shall be found to have been grossly and wilfully negligent, the Client further agrees that criticaldata’s liability for loss, damage or injury as a result thereof shall be limited to $500.00 or an amount equal to 50% of the last payment received by criticaldata from the Client whichever is the lesser, such sum being herewith agreed to be liquidated damages, and not a penalty. Such liquidated damages are the sole and exclusive remedy for any failure of the services or equipment. Furthermore, the provisions of this paragraph shall apply if loss, damage or injury, irrespective of its cause or origin, results directly or indirectly to a person or property from the performance or non-performance, negligent or otherwise, of any obligation of criticaldata or its employees or other persons for whom it is vicariously liable and the Client hereby agrees to indemnify criticaldata against all claims, demands, suits, and actions by any other party in respect of any failure, loss, damage, or injury as set out above herein. It is intended and expressly agreed that the purpose of the preceding provisions are to set a maximum limit to the amount recoverable by the Client or any claimants thereunder and to fix liability of criticaldata at a specific sum as specified above. If The Client desires additional liability coverage, it shall be its responsibility to secure it from an insurance carrier or other agency of its choice, at its own expense. The Client shall bring no suit against criticaldata more than six (6) months after the accrual of the cause of action therefore.
The Client is responsible for the cost and maintenance of all telephone or other communication equipment and circuits required for the proper and effective transmission of data and system access. All data files are transmitted over communication company circuits, which are wholly beyond the control and jurisdiction of criticaldata and are maintained by the communications company. If these communication circuits are not functional for any reason, the data files may not accurately or completely reach the criticaldata facility or equipment. criticaldata cannot be held responsible or liable for the continued operation or functioning of these communication circuits nor the reliability of the data files being received over them.
The Client is responsible for ensuring that its files do not contain any virus or other harmful data, programs or computer code whatsoever, and agrees that his data will not breach any laws of Australia, any State or Territory thereof, or any other Sovereign State, and the Client further agrees to indemnify and hold harmless criticaldata from all claims, suits, demands and actions arising from any infection or intrusion resulting from files uploaded by the Client to the criticaldata servers, or any breach of law as set out above.
Except in the cases or eventualities provided for in paragraphs 11 and 18 hereof, this Agreement may not be terminated by the Client before the expiration of the term of this Agreement. criticaldata may at any time terminate an Agreement with a Client without cause by providing the Client with thirty (30) days written notification by email, or by normal post with Australia Post, without any obligation on the part of criticaldata to prove due service thereof, and refunding any monies received for that period of the service which has been pre-paid but which shall not be used as a result of the cancellation, less any deductions for data traffic/data throughput based on the standard calculation procedures for same, or any other deductions which are relevant and appropriate at the time of cancellation. Any remaining funds will be returned to the client within ninety (90) days of the last days of service under the cancellation notice.
In the event criticaldata computer equipment, communication circuits, or other equipment are destroyed by fire, other catastrophe, or by any other means or is so substantially damaged that it is impractical to continue the service to the Client, criticaldata may at its discretion cancel the service to the Client with immediate effect.
Notwithstanding the provisions of paragraph 16 hereof, this Agreement may be terminated by either party for breach of contract of the other party, provided written notice of such breach is given and such breach is not cured within thirty (30) days of receipt of such notice. Upon the curing of such breach of contract, the party claiming such breach shall give written notice that the breach has been cured, and if necessary details thereof, whereupon, unless the aggrieved party within seven (7) days after receipt of such notice gives written notice of objection that the breach has not been cured, and if necessary details thereof, the Agreement shall thereafter continue in full force and effect for the remaining duration thereof.
This document contains the complete agreement between the parties hereto, and all the terms and conditions thereof. Any representation, promise, condition, inducement or warranty, express or implied, verbal or written, unless expressed in writing in this Agreement or any Addendum thereto, shall not bind either party. The terms and conditions as set out herein shall apply as printed without alteration or qualification except as specifically endorsed thereon in writing. A judicial determination nullifying any clause or condition herein, or part thereof, shall not be deemed to nullify the balance of this Agreement, which shall remain in full force and effect.
In the event this agreement is entered into by a corporation or a partnership as the Client, the individual signing this Agreement for the Client warrants that he or she has the authority to execute this Agreement and has the full and proper authority thereby to bind the Client, and also to permit the installation of equipment and systems required for the service.
This Agreement shall not be binding upon criticaldata unless accepted by an officer of criticaldata. In the event of non-approval, the sole liability of criticaldata shall be to refund to the Client any amount that has been paid by the Client as part of this Agreement.
This Agreement shall be construed, governed and enforced in accordance with the laws of the State of Queensland and the parties further agree to submit to the personal and exclusive jurisdiction of the courts of Queensland.
critical Terms & Conditions in .pdf
