PLEASE NOTE: These product or service specific terms and conditions must always be read together with our General Terms and Conditions, which will always apply to your use of this product or service.
ONLINE BACKUP (SERVER)
1. DEFINITIONS
1.1 Unless the context clearly indicates the contrary, any term defined in the General Terms when used herein, shall bear the same meaning as defined in the General Terms.
1.2 Unless the context clearly indicates to the contrary, the following words bear the meanings ascribed thereto-
1.2.1 “Online Backup (Server)” means the Services (license), contemplated in these Product Terms which MWEB renders/supplies to Customer in accordance with Customer’s selections as indicated in the Application Form under such heading or description whereby Customer may do online backups of data from a server to a dedicated server hosted in the MWEB data centre.
2. DURATION
Either Party may terminate the Online Backup (Server) at the end of the Initial Period by giving the other Party at least 3 (three) calendar months written notice prior to the end of the Initial Period. Any notice of termination given by Customer during the Initial Period shall only become effective upon the expiry of the Initial Period.
3. SERVICE FEES
3.1 Customer will be liable to pay the Service Fees for Online Backup (Server), in advance and in accordance with the provisions set out in the General Terms.
3.2 Service Fees are payable in accordance with the amount of licenses required (servers Customer wants to back up).
4. UNDERTAKINGS AND ACKNOWLEDGEMENTS
4.1 MWEB undertakes to use its reasonable endeavours to provide Customer with Online Backup (Server) on a 24 (twenty four) hour per day basis on each and every day for the continued duration of Online Backup (Server).
4.2 The following circumstances and events may impact upon its use of Online Backup (Server) and further that these circumstances and/or events are beyond MWEB control: (i) use of Online Backup (Server) by other customers; (ii) the Internet; (iii) limitations upon national and/or international bandwidth capacity; (iv) telecommunication service operator failures, which includes telecommunication links and line failures; (v) mobile telecommunication service operator failures; (vi) mobile network failures; (vii) operating systems; (viii) access technology failures; (ix) quality of service of telecommunication links or lines; (x) any action, omission and/or failure by Customer and/or his/her/its systems, software, network and/or equipment which has an impact on Online Backup (Server); and (xi) any other action, omission and/or failure not within MWEB’s control which has an impact on Online Backup (Server).
5. TERMS AND CONDITIONS SPECIFIC TO ONLINE BACKUP (SERVER)
5.1 Should Customer be allowed by MWEB to make any amendments to its Online Backup (Server) Services online on the systems provided by MWEB, including the amount of licences then the Agreement, including these Online Backup (Server) Product Terms shall apply automatically to such amendments, irrespective if Customer has agreed to it at the time or not.
5.2 MWEB grants Customer, for the duration of Online Backup (Desktop), a limited, non-perpetual, non-exclusive, non-transferable license per server (as indicated on the Application Form) in respect of which it wants to use Online Backup (Desktop), which includes any software associated with it, in accordance with the provisions of the Agreement, including these Product Terms and/or in terms of instructions provided to Customer by MWEB from time to time.
5.3 Customer undertakes to use Online Backup (Server) solely for internal purposes and shall not be entitled to directly or indirectly transfer, distribute, re-distribute, copy, sell, re-sell, lease, rent, lend, license or sub-license Online Backup (Server) in whole or in part in any way whatsoever to any third party.
5.4 Customer acknowledges that all title and intellectual property rights in Online Backup (Server), including training and/or user manuals, provided to Customer is owned by and shall remain vested in MWEB, its licensors or suppliers, as the case may be. Except if otherwise agreed the Customer accordingly agrees not to copy, duplicate, reproduce, transmit, modify, reverse engineer, decompile, or disassemble Online Backup (Server) or any portion thereof, including any software associated with it in any way whatsoever and shall only use it for the purpose it is supplied.
5.5 MWEB represents that, to the best of its knowledge, Online Backup (Server) does not infringe upon or violate any Intellectual Property Rights of any third party.
5.6 Customer acknowledges the nature of Online Backup (Server) and accordingly agrees that the specification and operation of Online Backup (Server) is known to him/her/it and accepts that it is suitable for the purpose it is intended to be used.
5.7 Installation
5.7.1 The Parties shall prior to the installation date of the Online Backup (Server) software on Customer’s server agree to the specific requirements pertaining to the installation and configuration of the Online Backup (Server) software, provided that Customer’s requirements shall not fall outside the scope of Online Backup (Server).
5.7.2 Should any “plug in” be required to ensure the operation of Online Backup (Server) on the server MWEB shall provide it at additional Service Fees specified in the Application Form. Customer agrees to be bound by the terms and conditions of any licensing agreement of a Licensor of such “plug in” that is acquired and installed.
5.7.3 Customer shall accept installation of the Online Backup (Server) software including any plug in required by allowing MWEB or its agents, reasonable access to its premises to install and configure Online Backup (Server) or any required plug-in whenever tendered by MWEB. A signed delivery note shall constitute prima facie proof that Online Backup (Server) has been delivered, received, installed and configured in accordance with Customer’s specified requirements, as agreed by the Parties and that it is operational, whether such delivery note is signed by Customer or his/her/its employee or representative.
5.7.4 Should Customer require MWEB to attend to the first backup by way of a data dump on the relevant MWEB server instead of an online backup, MWEB shall attend to it, provided that:
5.7.4.1 the size of the backup exceeds 5 Gigabytes; and
5.7.4.2 MWEB may charge additional Service Fees, as stipulated in the Application Form, for such data dump.
5.7.5 Although MWEB shall use the necessary skill and diligence when attending to the performance of any functions/tasks contemplated in clause 5.7 it shall be done at Customer’s risk.
5.8 Since Customer is responsible to determine the selection of what Customer wants to back up and to do such backups MWEB, its licensors or its suppliers take no responsibility in any way whatsoever for it.
5.9 Customer specifically agrees that it shall not:
5.9.1 circumvent any component and/or process of Online Backup (Server) or cause it to be done in any way whatsoever; and
5.9.2 use/access Online Backup (Server) or cause it to be used and/or accessed in any way other than authorised by MWEB in terms of these Product Terms.
5.10 Restoration of data
5.10.1 No additional Service Fees are charged for online restoration of data on a server from a backup done for that server.
5.10.2 Should the Customer require any on-site restoration of data on the server from the available backup of that server, MWEB shall attend to it without charge:
5.10.2.1 should the total storage space for such backup data be more than 5 Gigabytes; and
5.10.2.2 not more than once during each six month period for the duration of the Agreement.
5.10.3 MWEB may charge Service Fees, which it may determine in its sole discretion, for the restoration of any data other than data restoration contemplated in clause 5.10.2.
5.10.4 A signed delivery note or the like shall constitute prima facie proof that a requested restoration has been delivered, received, installed and that it is operational, whether such delivery note is signed by Customer or his/her/its employee or representative.
5.11 Although MWEB shall use the necessary skill and diligence when requested to attend to the restoration of data such restoration shall be done at Customer’s risk and MWEB does not guarantee that such restoration shall be successful. The maximum storage space per server/license shall be the storage space, as indicated in the Application Form or as it may be amended by the parties from time to time by agreement.
5.12 Upon termination of Online Backup (Server) or the termination of any license for any reason whatsoever, whichever is applicable, such license/s shall terminate and Customer shall immediately cease any use of Online Backup (Server)/license, which shall include any software, training and/or user manuals. All backups made shall be deleted upon such termination. Customer shall ensure that any software associated with Online Backup (Server)/license shall be removed from the relevant server/s.
5.13 Any encryption key issued to Customer is its own and absolute responsibility and if lost MWEB shall not be able to provide it to Customer resulting in any backups made by Customer using Online Backup (Server) to be of no use.
5.14 Customer accepts full responsibility for the content of any backup delivered/transmitted/sent/ done using Online Backup (Server). Customer furthermore agrees that MWEB has no interest in the contents of any such backup and agrees that nothing that MWEB, its licensors or its suppliers do in the performance of its/their obligations in terms of Online Backup (Server) shall be construed as an assumption of responsibility or liability by MWEB, its licensors or suppliers of the content/data which is delivered/transmitted/sent/stored using the Online Backup (Server) whether or not MWEB, its licensors or suppliers had knowledge of such content. Customer indemnifies MWEB, its licensors or suppliers and agrees to hold MWEB, its licensors or suppliers harmless from and against losses or damages suffered or incurred by MWEB or for any such claims instituted against MWEB by a third party, arising out of or relating to the delivering/transmitting/sending/storing of any data or content via Online Backup (Server).