Supplemental - Backups

Where a Customer purchases a Backup Product (defined below) from Trustack, these Supplemental Terms shall apply, in addition to those in the Agreement.

Interpretation

These additional definitions apply:


Backup Vendor	The respective vendor which develops and provides the backup software being deployed.
Charges	the fees for the backup Product as outlined in the Quotation.
Commencement Date	the date outlined in the Quotation.
Content	data, ﬁles or other content on the backup Product.
Backup Product	a backup and business continuity product.
Term	the term of these Supplemental Terms, as set out in the Quotation, including any Renewal.

1. Term and Charges

1.1. These Supplemental Terms commence on the Commencement Date and will continue for the Term, after which they will remain in force and, unless otherwise agreed, shall automatically renew for successive periods equal to the length of the original Term (or such other period as agreed between the parties) (Renewal), subject to then current prices, until terminated by either party.

1.2. Where the Customer is subject to a minimum of 12 (twelve) month Term, either party may terminate by providing at least 60 (sixty) days’ notice to terminate, to expire no earlier than the expiry date of the Term or Renewal.

1.3. Where the Customer is subject to a rolling monthly Term, either party may terminate by providing at least 30 (thirty) days’ notice to terminate.

1.4. The Customer shall pay the Charges which, unless otherwise agreed, will be invoiced and paid for by the Customer monthly.

2. Terms of Use

2.1. These Supplemental Terms apply to the Customer that owns, licenses, or lawfully controls the Content with which the Backup Product will be used. The backup vendor does not provide the Backup Product directly to the Customer, Trustack does.

2.2. The Backup Product is sold and provided by the Backup Vendor directly to Trustack who will use and manage the Backup Product on the Customer’s behalf with its Content; and who may also authorise the Customer to access, use or manage the Backup Product itself, either through the Backup Product interface or through a portal account, in which case the Customer will be considered an additional authorised administrator of the Backup Product.

3. Rights to the Backup Product

The Customer acknowledges that the Backup Vendor and its licensors own all intellectual property rights in and to the Backup Product. The Customer will not engage in or authorise any activity that is inconsistent with such ownership. The Backup Product may involve the use of third party technology licensed by the Backup Vendor, the use of which is subject to such third parties’ license or other end user customer terms.

4. The Backup Vendor’s Rights and Responsibilities Regarding Content

4.1. The Backup Vendor Use of Content. The Backup Vendor will use Content only as necessary to provide and support the Backup Product and will not otherwise access Content other than as permitted herein, as described in the Backup Vendor Privacy Policy, or as authorised by Trustack for support.

4.2. The Backup Vendor’s Rights. In the event that the Backup Vendor or Trustack reasonably believes Content or related Backup Product use violates these terms, may disrupt or threaten the operation or security of any computer, network, system or the Backup Product, or may otherwise subject The Backup Vendor to liability, the Backup Vendor or Trustack reserves the right to refuse or disable access to the Backup Product or Content. The Backup Vendor may also take such action pursuant to relevant copyright or intellectual property laws and/or as required to comply with law or any judicial, regulatory or other governmental order or request. The Backup Vendor will use reasonable efforts to contact Trustack prior to taking such action, but Trustack shall not be liable to the Customer whatsoever or howsoever for not being informed of such action.

4.3. Notwithstanding the foregoing, The Backup Vendor or Trustack may restrict access to any Backup Product or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. The Backup Vendor will use reasonable efforts to contact Trustack prior to taking such action, but Trustack shall not be liable to the Customer whatsoever or howsoever for not being informed of such action.

4.4. Use of Aggregate Data. Notwithstanding anything else in these Supplemental Terms or otherwise, The Backup Vendor may evaluate and process use of the Backup Product and Content in an aggregate and anonymous manner, meaning in such a way that the individual is not or no longer identiﬁed or identiﬁable and compile statistical and performance information related thereto (referred to as “Aggregate Data”). The Backup Vendor may use, process and share such Aggregate Data with third parties to improve the Backup Products, develop new products, understand and/or analyse usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to The Backup Vendor’s business.

4.5. The Backup Vendor retains all intellectual property rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identiﬁable information nor identify any Customer or individual.

4.6. Right to Change Backup Products. The Backup Vendor, or Trustack may make changes to its Backup Products through updates and upgrades that offer new features, functionality, and efﬁciencies (“Enhancements”). The Backup Vendor and Trustack reserves the right to add new Backup Products and Enhancements and to replace or discontinue Backup Products or Enhancements at any time. The Backup Vendor will use reasonable efforts to contact Trustack prior to taking such action, but Trustack shall not be liable to the Customer whatsoever or howsoever for not being informed of such action.

4.7. Right to Interact with Backup Products. The Customer agrees that The Backup Vendor may and the Customer hereby authorises The Backup Vendor to interact remotely with any deployed Backup Product in order to test, troubleshoot, update, analyse use of or modify the Backup Product or the environment in which it operates.

5. Trustack

5.1. The Backup Vendor will interact with Trustack as the administrator appointed by the Customer to operate and manage use of the Backup Product with the Customer’s Content. The Customer is not a third party beneﬁciary of any agreement between The Backup Vendor and Trustack.

5.2. Trustack is not an agent of The Backup Vendor and is not authorised to make any representations or warranties on behalf of The Backup Vendor regarding the Backup Product or its use.

5.3. The Customer is responsible for instructing and authorising Trustack with respect to use of the Backup Product including backup settings, management, retention and deletion of Content, and transition of Backup Product or Content to a different administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Trustack, the Customer and/or The Backup Vendor.

5.4. The Customer expressly agrees that The Backup Vendor may rely on the instructions and authorisation of Trustack with respect to use and support of the Backup Product and access and control of the Customer Content.

6. The Customer’s Direct Use of a Backup Product

If Trustack authorises the Customer to access or use a Backup Product directly, though the Backup Product interface or through a portal account, the Customer is responsible for all actions it takes with respect to use of the Backup Product including backup settings and management, retention and deletion of Content and The Backup Vendor or Trustack may rely on the Customer’s instructions as an authorised administrator of the Backup Product. Any support for the Backup Product is provided to you by Trustack and not directly by The Backup Vendor.

7. Security

7.1. The Backup Vendor has implemented and maintains physical, technical and administrative measures designed to help secure Content under The Backup Vendor’s control against accidental or unlawful loss, access or disclosure. However, no password protected system of data storage and retrieval can be made entirely impenetrable and the Customer acknowledges and agrees that despite the reasonable measures employed, the Backup Products and Content are not guaranteed against all security threats or other vulnerabilities.

7.2. The Customer acknowledges and agrees that Trustack has access to and manages the Customer’s Content. The Backup Vendor will in no event be responsible, for any physical, administrative, or technical controls related to Backup Products or Content not under the exclusive control of The Backup Vendor, including but not limited to local Backup Product access, passwords or other access credentials, LAN or internet connectivity. Either the Customer or Trustack (but only where such items are supported by Trustack under separate Supplemental Terms) are responsible for the proper conﬁguration and maintenance of security measures and for determining the security measures appropriate for the Content, including local encryption of sensitive Content.

7.3. The Backup Product shall not be deemed to be unavailable in the event of the following:

7.3.1. any circumstances that are not within the reasonable control of The Backup Vendor or Trustack;

7.3.2. virus activity or hacking attempts;7.3.3. a force majeure event (clause 18 in the Agreement (Force Majeure));

7.3.4. in accordance with a court order or any requirements of any authority or other competent local authority;

7.3.5. periods of scheduled or emergency maintenance of which the Customer has been notified;

7.3.6. failure of the Customer’s connection or related problem;

7.3.7. failure or malfunction of equipment, software, or other technology not owned or controlled by The Backup Vendor or Trustack (unless the Customer has paid for Trustack’s support services);

7.3.8. a malfunction that results from any action or inaction of the Customer or a third party (except Trustack);

7.3.9. a malfunction that results from anyone gaining access to the Backup Product by means of Customer passwords or equipment; or

7.3.10. unavailability of any management console or APIs.

8. Indemnification

The Customer will defend, indemnify and hold harmless The Backup Vendor and Trustack from and against any loss, cost,
liability or damage, including attorneys’ fees, for which The Backup Vendor and/or Trustack becomes liable arising from any claim relating to the Customer’s Content, including if it a) infringes or misappropriates the intellectual property rights or other rights of a third party; b) violates any applicable law; or c) otherwise is in violation of these Supplemental Terms or the applicable Backup Product Terms of Use.

9. Limitations Of Liability

9.1. THE BACKUP PRODUCT, INCLUDING ANY THIRD PARTY COMPONENTS OR TECHNOLOGY, ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BACKUP VENDOR DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THE BACKUP VENDOR DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

9.2. THE BACKUP VENDOR MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY CUSTOMER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.

9.3. THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE BACKUP VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

9.4. THE BACKUP VENDOR DISCLAIMS ANY DUTIES OF A BAILEE, AND THE CUSTOMER HEREBY WAIVES ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF THE BACKUP VENDOR.

9.5. TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL THE BACKUP VENDOR OR ANY LICENSOR OR SUPPLIER OR TRUSTACK BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF THE BACKUP VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE BACKUP VENDOR BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.

9.6. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE BACKUP VENDOR, ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF THE BACKUP VENDOR’S OBLIGATIONS HEREUNDER.