BackupAssist MultiSite Manager End User License Agreement

Download the BackupAssist MultiSite Manager End User License Agreement

The use of the software known as MultiSite Manager (“Software”) and supplied documentation (“Material”) which is owned or licensed to you by Cortex It Labs Pty Ltd (ACN 120 499 176) (“Licensor”) is governed by the licence terms and conditions set out below (“this Agreement”). Without limiting the ways in which you may be bound by this Agreement, by clicking “I accept the terms of this Licence Agreement” (or similar wording) or using a similar mechanism indicating your acceptance, by signing a document in which you expressly agree to be bound by this Agreement, or by otherwise installing and using the Software, you (the “Licensee”) will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.

LICENCE CONDITIONS
- 1.1 Subject to clause 4, the Licensor grants to the Licensee, a non-exclusive, non-transferable, revocable licence (“Licence”) to install and use the Software on the number of personal computers (as specified by the Licensor at the time of granting the Licence) which are owned, leased or otherwise controlled by the Licensee (“Licensed System”).
  1.2 The term of the Licence will be separately specified by the Licensor at the time the Licence is granted to the Licensee. The term of the License may, subject to clause 4, at the Licensor's discretion be:
  1. limited to a specific period of time, which may or may not be capable of renewal (“Subscription Licence”); A Subscription Licence may also be granted as part of a software as a service offering (as designated at the time of purchase or supply of the Software) ("SAAS Licence"); or
  2. limited to an evaluation term (“Evaluation Licence”).
- 1.3 If the Software is provided on a Subscription Licence basis, the Licence will continue for such time as the Licensee continues to pay all applicable licence fees to the Licensor, unless terminated earlier pursuant to clause 4.
  1.4 The Licensee may only make reproductions of the Software for the purposes of back-up or archival purposes (in which case, only one copy of the Software may be made), executing the Software for its intended purpose and installing the Software on the Licensed System. The Licensee shall keep any backup or archival copies of the Software in a secure place under its control.
  1.5 Apart from clause 1.4 and except to the extent permissible under the Copyright Act 1968 (Cth), the Licensee may not copy or reproduce the Software.
  1.6 The Licensee may not sublicense, deliver, transfer or assign the Licence to any other person without the written permission of the Licensor.
  1.7 Unless otherwise agreed to in writing by the Licensor, the Licensee may not install or use the Software on a server or on any computer other than the Licensed System.
PRIVACY
The Licensor may from time to time collect personal information about the Licensee or its users of the Software. All personal information collected by the Licensor will be managed in accordance with its privacy policy which may be viewed here - https://www.backupassist.com/legal/backupassist-privacy-policy.html
EVALUATION LICENCE
1. 3.1 If the Software is provided on an Evaluation Licence basis, this Licence commences on the date that the Software is installed and expires at the end of the evaluation period specified by the Licensor at the time of installation ("Evaluation Term").
2. 3.2 The Licensor may at its discretion, limit the functionality of the Software and/or restrict access to certain functionality of the Software during the Evaluation Term.
3. 3.3 The Licensee may purchase a full licence of the Software and unlock its full functionality at any time by visiting www.backupassist.com or via the purchase functionality contained in the Software. Upon expiry of the Evaluation Term, the Licensor may offer the Licensee the option to purchase a full licence of the Software, subject to payment of all applicable fees specified by the Licensor.
4. 3.4 This Licence terminates automatically without notice from the Licensor upon the expiration of the Evaluation Term, unless the Licensee elects to purchase a full licence of the Software pursuant to clause 3.3. Upon expiry or termination of the Evaluation Licence the Licensee must, without limitation, comply with its obligations under clause 4.4
TERMINATION
1. 4.1 This Agreement will automatically terminate upon the termination of the Licence.
2. 4.2 This Agreement may be terminated by the Licensee by written notice to the Licensor and by the Licensee returning all copies of the Software and documentation.
3. 4.3 This Agreement and the Licensee’s rights under this Agreement may be terminated at any time by the Licensor on the provision of written notice to the Licensee if:
  1. the Licensee is in breach of this Agreement or a Third Party Licence (as that term is defined in clause 10.1);
  2. the Licensee becomes insolvent, bankrupt, is wound up, or has an administrator, liquidator or receiver appointed over it or its assets; or
  3. another agreement between the Licensee and the Licensor permits the Licensor to terminate this Agreement.
4. 4.4 Upon the termination of this Agreement:
  1. the Licensee will cease using the Software and will immediately uninstall and delete the Software from the Licensed System;
  2. the Licensee will delete or destroy, or where specified by the Licensor, return to the Licensor, any Material supplied by the Licensor and any backup or archival copies of the Software or Materials;
  3. any licence keys for Software licensed to the Licensee will be immediately deactivated and destroyed by the Licensor; and
  4. nothing herein shall be construed to release either party from any obligation that arose prior to the effective date of such termination.
5. 4.5 Clauses 5.5, 7, 8, 9 and 10 of this Agreement will survive the termination of this Agreement.
MULTI SITE FUNCTIONALITY
1. 5.1 The Software permits the Licensee to manage multiple installations of the BackupAssist Software (“BackupAssist”) which are used by the Licensee.
2. 5.2 In order to remotely manage a BackupAssist installation, the Licensee, in respect of that installation (“Active Client”):
  1. must be running BackupAssist v8 or a later version of the Software;
  2. must have designated that Active Client, or a different Active Client, to act as a Site Controller (for more information on the Site Controller functionality, please visit www.backupassist.com); and
  3. together with the purchase of the licence to use BackupAssist, the Licensee must have purchased a “BackupCare” or “Upgrade Protection” subscription from the Licensor (“Support Subscription”) for the Active Client. If the Support Subscription for a Site Controller or Active Client expires, then the Licensor may in its discretion, limit the ability or functionality of the Software to remotely manage that particular Site Controller or Active Client.
3. 5.3 The Software will communicate with each Site Controller operated by the Licensee, which will in turn allow the Software to remotely manage each Active Client. The actual functionality offered by the Software (including in relation to remotely managing Active Clients) will be as specified by the Licensor from time to time.
4. 5.4 If a Subscription Licence is purchased for the Software, and if that Subscription Licence expires and is not renewed, then the remote management functionality of the Software may be disabled or limited by the Licensor until such time as a new licence is purchased, or a renewal of the Subscription Licence occurs. The Licensor may permit backups to continue to be stored by the Software which are received from Active Clients.
5. 5.5 The Licensee acknowledges and agrees that in using the Software, and by allowing the Software to interoperate with an Active Client or Site Controller, that:
  1. data may be transferred over the internet or other network between the Software each Active Client and each Site Controller;
  2. the transfer of data may not be secure;
  3. allowing that transfer of data may open up communication ports on the Licensed System or an Active Client or Site Controller which may not be secure, and which may result in the security of their Licensed System, and computer systems generally, being compromised; and
  4. the Licensee is at all times responsible for its own software security and the security of its data. The Licensor is not liable or responsible for protecting the security of the data transferred, the Licensed System, the Licensee’s computer systems and applications generally, any Site Controller or Active Client, or for any loss, cost, expense or damage suffered by the Licensee as a result of any unauthorised access or use of any of the forgoing.
UPDATES, UPGRADES AND SUPPORT
1. 6.1 Subject to clause 6.2, the Licensor is under no obligation to provide updates, upgrades or new releases for the Software (“Upgrades”) or software maintenance and support for the Software (“Support”).
2. 6.2 The Licensor will only provide Upgrades and Support to the Licensee, if the Licensee has purchased the right to receive Upgrades and Support from the Licensor, which may include, without limitation, via the purchase of a Support Subscription. If the Licensee does purchase Upgrades and/or Support from the Licensor, then the terms of providing those Upgrades and Support will be separately specified by the Licensor or its resellers at the time of purchase.
3. 6.3 This Agreement will, unless specified by the Licensor to the contrary in writing, apply to all Upgrades supplied by the Licensor to the Licensee (and a reference to the “Software” will be deemed to include a reference to each Upgrade which the Licensor supplies to the Licensee).
LIMITATION AND IMPLIED TERMS
1. 7.1 The Licensee acknowledges that the Licensor has made no warranties that the Software is error free or will operate on the Licensed System.
2. 7.2 The Licensee acknowledges that the Licensor has not made and will not make any express or implied warranties in relation to the Software or any other goods or services provided by the Licensor under this Agreement, other than those warranties expressly contained in this Agreement. Subject to clauses 7.5 or 7.6, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
3. 7.3 Subject to clauses 7.5 or 7.6, the Licensee agrees that the Licensor will not be liable in respect of any claim by the Licensee (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Software or the provision of any other goods or services under this Agreement and whether as a result of any breach or default, by the Licensor.
4. 7.4 The maximum liability of the Licensor under this Agreement for any and all breaches of this Agreement, and for any negligence in relation to this Agreement, will not exceed the lesser of:
  1. the purchase price paid for the Software by the Licensee; or
  2. AUD $10
5. 7.5 If the Competition and Consumer Act 2010 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of the Licensor is limited, at the option of the Licensor, to:
  1. in the case of goods, any one or more of the following:
    1. the replacement of the goods or the supply of equivalent goods;
    2. the repair of the goods;
    3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
    4. the payment of the cost of having the goods repaired; and
  2. in the case of services:
    1. the supplying of the services again; or
    2. the payment of the cost of having the services supplied again.
6. 7.6 Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of the Licensor will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Licensee’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by legislation.
7. 7.7 The Licensor provides the following notice as required by the Australian Consumer Law (which may apply to the Licensee if the Licensee is a “consumer” under the Competition and Consumer Act 2010):
  Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
8. 7.8 The Licensee indemnifies the Licensor, its agents, officers and employees against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which is suffered or incurred by the Licensor, its agents, officers or employees as a direct or indirect result of:
  1. any breach of this Agreement by the Licensee; or
  2. any action, claim, demand or proceedings instituted against the Licensor as a result of the use of the Software by the Licensee
INTELLECTUAL PROPERTY AND DISASSEMBLY
1. 8.1 The Licensor retains ownership of the Software and Material and all rights in copyright, moral rights, inventions (including patents), trademarks, designs, circuit layouts (whether or not registered or registrable) which subsist in the Software and Material at all times. Apart from the Licence granted herein, all such rights are reserved by the Licensor.
2. 8.2 The Licensee agrees that it will use the same degree of effort that it uses to protect its own proprietary information to maintain possession and confidentiality of the Software and Material, and to protect the copyrights, and all related technical information, data and materials supplied to the Licensee by the Licensor.
3. 8.3 Subject to the Licensee’s rights arising under the Copyright Act 1968 (Cth), the Licensee will not modify, disassemble or reverse engineer the Software in any way without receiving written permission from the Licensor to do so.
EXPORT LAWS
1. 9.1 The Licensor, its employees and its agents may be subject to export control laws of Australia, the United States or other jurisdictions that prohibit or restrict transactions with certain parties, and the type and level of technologies and services that may be exported (“Export Laws”). The Licensee agrees to comply fully with all such laws and regulations of Australia, the United States and other countries to assure that neither the Software, nor any direct products thereof are exported, directly or indirectly, in violation of Export Laws, or are used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
2. 9.2 The Software nor underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, Syria or any other country to which Australia or the United States has embargoed goods; or to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List, Non-proliferation Sanctions or General Orders, or similar lists or orders in Australia or other jurisdictions. By downloading or using the Software, the Licensee is agreeing to the foregoing and it is representing and warranting that it is not located in, under the control of, or a national or resident of any such country or on any such list, and that it acknowledges that it is responsible to obtain any necessary Australian or United States government authorisation to ensure compliance with such laws.
COMPLIANCE WITH THIRD PARTY LICENCES
1. 10.1 The Software incorporates components licensed to the Licensor by third parties, which may be subject to their own End User Licence Agreements (“Third Party Licences”).
2. 10.2 The Licensee agrees that the use of the Software, in addition to this Agreement, will be governed by any terms and conditions specified by any Third Party Licence that applies to the Software, including but not limited to those appended to this Agreement.
3. 10.3 The Licensee agrees to be bound by and observe all terms and conditions of any Third Party Licence and acknowledges that any breach of a Third Party Licence will entitle the Licensor to terminate the Licence and exercise its rights under clause 4.
AMENDING THIS AGREEMENT
1. 11.1 The Licensor may amend any of the terms of this Agreement by providing written notice to the Licensee of such amendments and/or displaying such amendments or an amended copy of this Agreement to the Licensee during its installation and/or execution of the Software. Without limiting the methods by which the Licensee may accept such amended terms, the Licensee acknowledges and agrees that its ongoing use of the Software after it is made aware of any amended terms to this Agreement will constitute its acceptance of such amended terms.
2. 11.2 If the Licensee does not agree to any amendments made by the Licensor to the terms of this Agreement, then the Licensee must uninstall the Software from its Licensed System and cease any further use of the Software. In such circumstances, the Licensee may also contact the Licensor to determine if it is eligible for a refund or partial refund of any purchase price paid to the Licensor in respect of the Software (subject to any conditions which the Licensor may place in respect of paying such a refund).
MISCELLANEOUS
1. 12.1 In the interpretation of this Agreement, unless the contrary intention appears:
  1. a reference to this Agreement means a reference to an agreement between the Licensor and the Licensee on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;
  2. a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
  3. the singular includes the plural and vice versa;
  4. a reference to any gender includes a reference to all other genders;
  5. a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
  6. an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
  7. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
  8. headings are inserted for convenience only and do not affect the interpretation of this Agreement.
2. 12.2 Unless otherwise requested in writing by the Licensee, the Licensor may use the Licensee’s corporate identity (if applicable) as part of promoting the Software in the market place.
3. 12.4 A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
4. 12.5 If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
5. 12.6 The Licensor may assign, novate or otherwise transfer its rights and obligations that arise under this Agreement. The Licensee may not assign its rights or obligations that arise under this Agreement without the prior written consent of the Licensor (which may be withheld).
6. 12.7 Each provision of this Agreement capable of having effect after termination and each representation and warranty made in this Agreement will survive the execution, delivery and termination of this Agreement and the performance of all obligations under this Agreement and will not merge on termination.
7. 12.8 The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
8. 12.9 This Agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia.

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