Online Backup TOS
FIX COMP SERVICES AGREEMENT FOR THE SUPPLY OF DATA STORAGE
0.1 Fix Comp: Fix Comp whose office is at Hartwell Farm, Court Road, Cranfield MK43 0DX
0.2 The Correspondense: Adrress: Hartwell Farm, Court Road, Cranfield MK43 0DX
0.3 The Services: Data backup and storage services
0.4 The Fees: The fees determined in accordance with this agreement.
0.5 You: The person obtaining the Services from Fix Comp under this Agreement
0.6 Notice Period: 30 days
0.7 Storage Band: The average monthly storage data amount stored on Fix Comp servers
0.8 The Data: The digital information transmitted by you to Fix Comp through the use of the Software to be stored on Fix Comp servers.
0.9 Data Controller: As defined in the Data Protection Act 1998
0.10 Data Processor: As defined in the Data Protection Act 1998
0.11 Encryption Key: The encryption key is a mandatory key created by You on the installation of the software. The encryption key is stored on the Fix Comp-Client Database in encrypted form, so even a person with full access to the Ds-Client computer cannot find out the values of the encryption key. Fix Comp do not have access to your encryption key and restores cannot be performed without it.
0.12 Password: The password as created on software installation. Password is only known by You, and data can only be decrypted with the use of the password by the account holder. Fix Comp do not have access to your password and cannot assist in the restoration of your data in case of password is lost.
0.13 Public Key: The published part of an asymmetric encryption key pair which a person intends third parties to use to encrypt data for the benefit of the person generating the key and which can only be decrypted by the use of the corresponding private key which is kept secure by the key generator
0.11 The Software: The Fix Comp client software as updated by Fix Comp from time to time
0.12 Usage Fee: is defined in clause 4
1. PROVISION OF SERVICES
1.1 In consideration of your payment of the Fee Fix Comp agrees to supply you with the Services on the terms and subject to the conditions set out in this Agreement.
1.2 You acknowledge that you are responsible for providing (and paying for) your own internet access facilities through your ISP or telecommunications provider.
1.3 Fix Comp agrees to provide technical support upon request.
2.1 Subject to earlier termination in accordance with this Agreement, this Agreement will continue unless terminated earlier and not less than the Notice Period from one party to the other.
3. PAYMENT OF FEES
3.1 You agree to pay the Usage Fees (as set out in clause 4) as they become due.
3.2 All fees are payable on the invoice date. You hereby authorise us to use the credit card/debit card entered when you signed up (or as updated) or any direct debit set up with us to pay the Fees and other charges under this agreement as they become due. Where any of your credit/debit card or direct debit payments are refused or reverse charged (other than through the default of Fix Comp) Fix Comp reserves the right to charge an administration fee of £20 on each and every occasion where this occurs to cover Fix Comp's time and expense. You undertake to inform Fix Comp each time your credit/debit card or bank details change.
3.3 Fix Comp reserves the right to charge interest on all late payments at the rate prescribed by Late Payment of Commercial Debts (Interest) Act 1998, whether or not such act applies to the debt in question.
4. USAGE FEES
4.1 Usage Fees are calculated on the basis of the average amount of data held on the Fix Comp servers after compression rounded up to the nearest megabyte.
4.2 A quota limit can be applied to backup storage upon request. Once quota limit is reached, any new or updated data will not be uploaded to our servers. You are responsible for managing your account quota limit and to notify Fix Comp technical team once quota limit needs to be changed.
4.2 If you exceed your Storage Band we will automatically upgrade you to the next Storage Band and charge you pro rata in advance for such Storage Band for the remainder of the Term.
5. AVAILABILITY and SERVICE LEVELS
5.1 Fix Comp does not undertake to provide the Services 24/7/365 but shall use reasonable commercial endeavours to make the Services available.
5.2 Subject always to its obligation to provide the Services with reasonable skill and care, Fix Comp shall not be liable for failure to provide the Services.
6. ACCEPTABLE USE POLICY
6.1 You undertake not to use the Services to store or transmit any data which are obscene, illegal, defamatory or which breach the rights of any third party and to fully and effectively indemnify Fix Comp against any cost, claim or expense arising from any breach or suspected breach of such undertaking.
7. OWNERSHIP OF DATA
7.1 You acknowledge and confirm that you own or are licensed and are permitted to transmit to Fix Comp all Data without breach of any law, agreement, arrangement or duty or the rights of any third party.
7.2 You acknowledge that Fix Comp has no effective access to the content of Data transmitted to Fix Comp using the Services as all Data is encrypted prior to transmission to Fix Comp using an algorithm which Fix Comp has no practical means of reversing in the absence of a password.
7.3 You undertake never to transfer to Fix Comp in whatever form (including but not limited to written or spoken) and for whatever reason any encryption key (except a Public Key), decryption key, password or other access token except only where such encryption key, decryption key or password is itself encrypted as part of the Data in a way which prevents Fix Comp from accessing it.
7.4 In no circumstances will Fix Comp attempt any processing of any Data supplied to Fix Comp under this Agreement other than storage and retrieval of encrypted data blocks.
7.5 So far as Fix Comp is aware of the current state of the art, loss of your password or encryption key will result in irretrievable loss of Data and no practical means exists of recovering such Data.
7.6 Fix Comp will never attempt to assist the recovery of any Data where loss is caused by the loss of or corruption to any encryption key.
8. DATA PROTECTION
8.1 Fix Comp stores the Data within the United Kingdom, but is not a Data Controller in relation to such Data as it has no access to nor ability to process such Data (whether pursuant to your instructions or otherwise) other to obtain or release such Data pursuant to instructions directed directly at the Fix Comp servers by you.
8.2 Fix Comp refuses to process or attempt to process any Data other than in accordance with clause 8.1 above.
8.3 You acknowledge that as holder of the decryption keys associated with the Data the security of the Data is entirely within your control. Fix Comp will use all reasonable endeavours not to permit anyone who does not have the appropriate access keys to have access to the Data (and then only in encrypted form) and you acknowledge and confirm that this satisfies the requirements of the seventh Data Protection Principle (security).
9. USE OF SERVICE
9.1 You undertake to use the Services only for yourself and not for any third party and not to resell or attempt to resell them.
9.2 You undertake to use the Services and to access the Fix Comp equipment solely through use of the Software as supplied to you and unmodified and you acknowledge and confirm that any other use of Fix Comp equipment is UNAUTHORISED AND MAY THEREFORE AMOUNT TO AN OFFENCE UNDER THE PROVISIONS OF THE COMPUTER MISUSE ACT, and you will not assist or permit any other person so to access the Fix Comp equipment.
10. USE and UPDATING SOFTWARE
10.1 An engineer from Fix Comp will be responsible for installing the software on your equipment unless agreed otherwise by both parts.
10.2 You undertake to update the Software promptly on notification by us as subsequent versions are released.
10.3 You acknowledge that the Software's feature set may vary from release to release.
10.4 Fix Comp accepts no liability for any failure in the Services where:
10.4.1 you attempt to access them with a version of the Software which is not current;
10.4.2 the Software fails owing to:
10.4.2.1 your failure to follow instructions correctly;
10.4.2.2 failure of the Software to interoperate with other software (including firmware);
10.4.2.3 hardware malfunctions;
10.4.3 there is any corruption or failure of encryption or decryption key;
10.4.4 the loss or corruption of any password or other identification token;
10.4.5 loss of or corruption of data caused while the data is in transit to or from the Fix Comp storage facility;
10.4.6 you are frozen out of access to the Services owing to a denial of service attack.
11. LICENCE TO SOFTWARE
11.1 For such period as Fix Comp is contracted to provide the Services, the Software is licensed to you pursuant to the End User Licence Agreement which is provided by the software manufacturer upon installation. The above mentioned Agreement may be amended from time to time.
11.2 The End User Licence Agreement is incorporated into this Agreement.
11.3 The licence referred to in Clause 11.1 above extends to any amendments, modifications bug fixes or version releases that may be issued from time to time.
12. SUSPENSION OF SERVICES
12.1 Without prejudice to any other remedy it may Fix Comp is permitted to suspend the services
12.1.1 if you are in breach of any term of this Agreement (including the End User Licence Agreement);
12.1.2 if you owe any money to Fix Comp (whether under this Agreement or otherwise) and such sums are due and payable;
12.1.3 where Fix Comp reasonably suspects that you are in breach of any term of this Agreement or reasonably anticipates that you will be;
12.1.4 where Fix Comp reasonably suspects that the security of its systems is or is about to be compromised
12.2 Should Fix Comp revoke such suspension, it does not guarantee the retention or integrity of any data stored pursuant to the Services while such suspension is in place.
12.3 Your licence to use the Software is suspended for such time as the Services are suspended pursuant to clause 12.1 above.
12.4 Fees continue to accrue and be payable at any time while the Services are suspended pursuant to clause 12.1 above.
13.1 Either party shall be permitted to terminate this Agreement on notice to the other if the other is in material breach of this Agreement and (where the breach is capable of remedy) has failed to remedy the breach within 30 days of receiving notice of the breach.
13.2 Fix Comp shall be entitled forthwith to terminate this Agreement by written notice to you if you become bankrupt.
13.3 Any waiver by either party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof.
13.4 The rights to terminate this Agreement given by this clause shall be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
14. EFFECT OF TERMINATION
14.1 On termination of this Agreement however caused, Fix Comp' obligation to retain any Data ceases, and Fix Comp shall be permitted to delete any Data held on its servers.
15. REFERENCES TO LEGISLATION
Any reference to a statutory provision shall include that provision as from time to time modified or re-enacted provided that in the case of modifications or re-enactments made after the date of this Agreement the same shall not have effected a substantive change to that provision.
16. SINGULAR AND PLURAL AND GENDER
The singular includes the plural and vice versa and any gender includes any other gender.
The headings of this Agreement are for ease of reference only and shall not be taken into account in the construction or interpretation of any provision to which they refer.
18. FORCE MAJEURE
18.1 Fix Comp shall not be liable for delay in performing or failure to perform obligations under this Agreement if the delay or failure results from force majeure.
18.2 For the purposes of this Agreement "force majeure" shall mean any Act of God war riot act of terrorism outbreak of hostilities strike or other industrial action of any kind malicious damage default of suppliers or sub-contractors accident failure or breakdown of plant or machinery fire flood explosion any act of local or national government or authority and any cause or circumstance whatsoever outside the reasonable control of the Parties.
18.3 In the event of any delay or failure under this Agreement resulting from force majeure a Party may rely on the provisions of this clause for exemption from liability for non-performance part performance defective performance or delay and in the event that any such delay or failure continues for a period in excess of 30 consecutive days a Party shall have the right to terminate this Agreement with immediate effect.
18.4 In the event of any force majeure (including a sequence of events of force majeure) which has lasted or is likely to last for longer than 14 days the Parties agree to discuss in good faith whether the respective rights and obligations of each Party under this Agreement can be amended in order to alleviate the effects of the force majeure and best bring into effect the original intentions of the Parties.
This Agreement may be modified or amended from time to time by the mutual agreement of the Parties provided however that no such modification or amendment shall be effective until reduced to writing signed by the Parties
20. SUCCESSORS AND ASSIGNS
References in this Agreement to the Parties shall include their respective heirs successors in title permitted assigns and personal representatives.
21. WAIVER AND FORBEARANCE
If any Party fails to rely on its rights under this agreement or otherwise, that shall not prevent it from relying on those (or similar) rights in the future.
22. CUMULATIVE REMEDIES
22.1 The provisions of this Agreement, and the rights and remedies of the Parties under it are cumulative and are without prejudice and in addition to any rights or remedies a Party may have at law or in equity.
22.2 No exercise by a Party of any one right or remedy under this Agreement, or at law or in equity, shall (save to the extent, if any, provided expressly in this Agreement, or at law or in equity) operate so as to hinder or prevent the exercise by it of any other such right or remedy.
Subject to Clause 24 below, Fix Comp expressly warrants that it will carry out the Services with reasonable skill and care.
24.1 Except as expressly stated in this Agreement, Fix Comp shall have no liability to you for any loss or damage whatsoever arising out of or in connection with this Agreement or the supply of Services hereunder whether arising in contract, tort (including negligence and breach of statutory duty) or otherwise. Subject to Clause 24.3 below Fix Comp's total aggregate liability to you in connection with this Agreement other than its liability under Clause 0.1 in any one calendar year shall not exceed 125% of the amount received by Fix Comp (excluding VAT) from you under this Agreement in such calendar year.
24.2 Neither Party shall, in any event, be liable or responsible to the other for any indirect, incidental, special or consequential loss, damage, cost or expense of any kind whatsoever and howsoever caused whether arising under contract, tort (including negligence and breach of statutory duty) or otherwise, including without limitation, loss of documentation, loss or corruption of data, loss of profits or of contracts, remedial costs, loss of operation or staff time, costs of obtaining substitute goods or services and loss of goodwill or anticipated savings, even if it has been advised of the possibility. Fix Comp cannot and does not know the value of the data you have stored and accordingly you are in a better position to assess the risk of loss of data and take out appropriate insurance than Fix Comp.
24.3 The express warranties given in this Agreement are in lieu of all warranties, conditions, terms, representations, undertakings and obligations (express or implied) imposed by statute, common law or otherwise all of which are hereby excluded to the maximum extent permitted by law.
24.4 The above exclusions and limitations shall apply to the fullest extent permissible at law but neither Party excludes or limits liability for death or personal injury caused by its negligence or that of its employees or agents and for which it is responsible, or for fraud or wilful deceit and nothing in this clause
24 shall have the effect of derogating from the statutory rights of a consumer as defined in the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended).
24.5 The Parties hereto acknowledge that the exclusions set out above are fair and reasonable in all the circumstances and that the exclusions and limitations of liability set out above are reasonable notwithstanding that they may have the effect of protecting Fix Comp from losses for which it may be insured (and the Parties acknowledge that there are sound commercial reasons for so doing, such as maintaining a good insurance claims record)
24.6 No indemnity in this Agreement shall be effective to the extent that it has the effect of excluding or restricting liability as set out in Clause 24.4 above.
24.7 You agree fully and effectively to indemnify Fix Comp against any claim, cost or expense arising in any way from any breach by you of this Agreement.
If any provision of this Agreement is found by a court or other competent authority to be void or unenforceable
25.1 that provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect; and
25.2 the Parties shall negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for that provision.
26. WHOLE AGREEMENT
26.1 Subject to clause 26.3 below this Agreement (including the documents and instruments referred to in it) supersedes all prior representations, arrangements, understandings and agreements between the Parties relating to its subject matter and is the entire complete and exclusive agreement and understanding between the Parties relating to its subject matter.
26.2 Each Party acknowledges that it has not relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in this Agreement
26.3 Clauses 26.1 and 26.2 above shall not apply to the extent that they relate to any warranty, representation or undertaking made fraudulently in which case the other Party shall be entitled to all the remedies available under English law .
You may not assign transfer sub-contract or otherwise dispose of any rights or obligations under this Agreement without the prior written consent of Fix Comp.
28.1 Any notice given under this Agreement shall be in writing and shall be delivered or sent by pre-paid registered post, email or by fax to the address of the relevant party as set out at the head of this Agreement, or to such address as subsequently notified to the other party pursuant to this clause. In the case of post, the notice shall be deemed to have been received 72 hours after it was posted, and in the case of fax or email, as soon as it has finished being sent, provided (in the case of fax) that the sending machine confirms that the receiving machine has received the notice error-free and in the case of email that no non-delivery receipt was received by the sender within 72 hours after sending.
29. RIGHTS OF THIRD PARTIES
This Agreement is not intended to convey a benefit on any person not a party to it and accordingly the provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded.
30. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of England and Wales and the Parties agree to submit to the non-exclusive jurisdiction of the English Courts.