1.1. In these Terms "We", "Our", or "Us" are references to Bermuda Business Solutions Pty Ltd (ACN 619 588 877), a company duly incorporated in the State of New South Wales, being the registered owner of the website idrive.com.au (“idrive Website”). “You” and “Your” are references to the purchaser who via the idrive Website has offered to purchase certain Services from Us, and whose offer has been accepted by Us.
1.2. If You are registering for the Services on behalf of an organisation, You are agreeing to these Terms for that organisation and promising that You have the authority to bind that organisation to these Terms. In that case, "You" and "Your" will refer to that organisation.
1.3. By accessing, using or browsing the idrive Website and by registering for an idrive Account, signifies that You have read, understood and agree to be bound by these Terms. If You do not agree with these Terms, You must cease usage of the idrive Website immediately.
1.4. These Terms apply to every order between You and Us. A contract is only concluded between You and Us for the supply of Services when the order has been accepted by Us.
2. Your Account and Your Information
2.1. In order to use the idrive Website and access the Services, You will be required to create an idrive Account (“Account”).
2.2. You agree to provide us with accurate and complete information when You create Your Account. In order to prevent unauthorised access to Your Account, You agree to keep Your password and other Account details confidential and not share them with anyone else.
2.3. When placing an order, You must provide Us with the Your:
- (a) name or business name as the case may be;
- (b) ACN or ABN (if applicable);
- (c) representative who will be the primary contact for Us for matters relating to this Agreement;
- (d) postal address;
- (e) telephone number(s)
- (f) email address(es) (together the “Contact Details”).
3. Provision of Software and Services by Us
3.1. A summary and basic description of the Services are set out on the idrive Website. As part of the Services, We will provide you with software for use in relation to the Services ("Software").
3.2. The Software may be provided with a software licence, which You must read and agree to before using the Software. Software manuals are provided online and in PDF format only and without warranty of any kind.
3.3. The Software may be updated or changed at any time at Our sole discretion.
3.4. You acknowledge that We remain the sole owner of all intellectual property rights in the Software. This ownership is absolute, worldwide and includes all intellectual property rights arising from or in relation to any future Software. You shall not copy, alter, modify, reproduce, reverse assemble or reverse compile the Software in whole or part or permit another to do so without Our prior written consent.
3.5. It is important to note that the functionality of the Software is time-dependent and these Terms represent the functionality as of now. It is possible that earlier versions of the Software do not support all the functionalities as described on the idrive Website.
4. Our obligations to You
4.1. Everything on the idrive Website and incorporated in the Software and Services is provided to You “as is” and “as available” without warranty or condition of any kind. None of Our directors, officers, employees, agents, contributors and licensors make any express or implied representation about the idrive Website, Software, or Services. In particular:
- (a) We do not warrant that the Services will always be uninterrupted or error free, that defects in the backup service will be corrected, or that the Software and/or Services is/are virus and/or harmful component-free;
- (b) Recovery assistance is offered by Us on a 'good faith' basis, and under no circumstances do We guarantee a minimum offering in the Services We offer, or provision of any recovery equipment;
- (c) There may be extended times of the Services being unavailable. In such circumstances, We will endeavour to resolve these unavailability issues as soon as practicable, but We do not warrant that Our servers will be available at all times and We will not be held responsible for backup failure due to electrical faults, internet failure or any other issues that contribute to or cause backup failure;
- (d) Data speeds are dependent on current network throughput and may vary due to network congestion and/or volume of traffic on the Our or carrier networks. We do not warrant that any particular data speed will be available at any particular time;
- (e) We are not responsible for the speed of data backup or restore;
- (f) We are not responsible for the time taken for delivery of any files or hard drives through either network transfer or physical delivery via courier, postal service or any other method if provided by Us as part of the Services.
4.2. All data files are transmitted over communication company networks, which are wholly beyond Our control and jurisdiction and are installed and maintained by the relevant communications company. If these networks are not functional for whatever reason the data backup may not work correctly or even reach Our servers. We cannot be held liable for the operation of these communication companies' networks or the acts or omissions of officers, agents or representatives of these companies or any third parties.
5. Your responsibilities and warranties
5.1. As a user of the idrive Website, You agree to use the idrive Website, the Software and the Services only for the purposes that are permitted by this Agreement, and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdiction.
5.2. You are responsible for all costs and expenses associated with downloading, installing, running or accessing or using the idrive Website the Software and the Services including, without limitation, any costs associated with computing hardware, maintenance, server and data storage and internet access.
5.3. Without limiting the matters for which You are responsible, You, and not We, are specifically responsible for the following:
- a) The selection of the information to be backed up on Our server;
- b) The scheduling of the backup operations (which We will endeavour to comply with) and ensuring that successful backup has occurred;
- (c) The cost and maintenance of all computers, servers, telephones, Cables, ADSL connections or other communication equipment required for data transmission, system access and to otherwise enable You to utilise the Services;
- d) Providing and maintaining a functioning Internet connection to enable You to utilise the Services; Your Internet security and all related devices such as hardware and/or software. Firewalls must be configured to communicate with the Our network. Any changes required to Your firewall configuration and other blocking software is Your responsibility and We cannot be held liable for an incorrectly configured firewall or other software/device blocking that prevents the backup data from reaching any of Our networks or servers
- e) Possession of and knowledge of the content of Your encrypting keys. You have sole responsibility to make sure that Your encrypting keys are kept in a safe and secure place. We shall not be held liable for any indirect, special, incidental or consequential damages resulting from loss/corruption/compromise of these encrypting keys.
- (f) We are not responsible for the time taken for delivery of any files or hard drives through either network transfer or physical delivery via courier, postal service or any other method if provided by Us as part of the Services.
5.4. You are solely responsible for any consequences arising out of Your failure to maintain the confidentiality of Your Account password and/or encryption password. You will notify us of any unauthorised use or breach in security of Your Account immediately after You learn of such unauthorised access or use. We advise frequent changes to the Account password for better security. The automated forget password option works on the assumption that only the account holder has access to the email address on record. In case the user does not have access to the email address, other means of verification may be used including billing/credit card information to verify identity.
5.5. We endeavour to restrict access to the data and files You store or retrieve from Your Account to persons You have authorised to access Your Account. However, no password-protected system of data storage and retrieval can be made entirely impenetrable. Accordingly, You hereby acknowledge that it may be possible for an unauthorised third party to access, view, copy, modify and distribute the data and files You store in Your Account. For maximum privacy and security, we recommend that You choose the user defined private key option to protect the data in Your Account.
5.6. In addition to any other of Your obligations under these Terms, You expressly warrant that:
- (a) any representative who makes or places an order on Your behalf is at least eighteen (18) years of age and has valid legal capacity to enter into the order for Services and to perform all of Your obligations and has all of the requisite corporate power and authority to enter into the order and accept these Terms and has authority to permit the installation of equipment and systems described herein; and
- (b) every officer, agent or representative of Yours who uses the Our Services has read and agreed to the obligations in these Terms.
6. Liability and Indemnity
6.1. We will not be liable for any damages or loss (including indirect or consequential loss) of any kind arising from:
- (a) Your use of the Software;
- (b) Our storage of Your data;
- (c) failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or other harmful component, loss of data, communication, line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records; or
- (d) the accuracy, suitability or currency of any information on the idrive, Website, the Software and the Services.
6.2. Provisions of the Competition and Consumer Act 2010 and other laws in force from time to time in Australia may imply guarantees, warranties, conditions, and impose obligation on Us and our subsidiaries, affiliates and suppliers (“Implied Terms”). If these Implied Terms apply, Our liability will be limited, at Our option, to the value of any Subscription Fees paid or payable to Us for the month in respect of which such liability arose or, to resupply, repair or replacement of the Services, or the cost of such resupply, repair or replacement, to the extent permitted by law.
6.3. Our liability is reduced proportionately in the event that You contributed to any claim or loss suffered by You.
6.4. Notwithstanding any other provision of this agreement, Our liability to you in connection with these Terms, the idrive Website, the Software and the Services does not extend to any consequential loss (including loss of opportunity profits).
6.5. To the extent permitted by law, You agree to indemnify Us, our affiliates, employees, agents, contributors third party content providers and licensors from and against:
- (a) All claims and loss (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with Your use of the idrive Website, Software or Services; and
- (b) Any breach of Your obligations under these Terms.
7. Prices, Payment and invoicing
7.1. You must pay the fee as initially agreed to by You when placing an order (“Subscription Fee”) in advance to enable access to the Services.
7.2. The initial Subscription Fee and Data Storage Limit are agreed to by You when placing an order.
7.3. Payment of the Subscription Fee shall be by way of recurring monthly/3 monthly/6 monthly or yearly payments.
7.4. Payment of the Subscription Fee through recurring repayments must be made by credit card (VISA, Mastercard, American Express) or as direct debit.
7.5. You warrant that You are duly authorised to use the credit card or bank account it uses to pay the Subscription Fee.
7.6. If You elect to pay the Subscription Fee by American Express, You will incur a transaction fee for each Payment of 3% of the total amount of that Payment.
7.7. If you are located in a jurisdiction other than Australia, You may incur additional fees for credit card use or money conversion. You are responsible for paying all such fees.
7.8. Any fees incurred by Us as a direct result of any one of Your payments being declined (for whatever reason) will be charged to You as an additional amount in the following month’s Subscription Fee unless otherwise agreed in writing between You and Us.
7.9. Recurring payments continue until the Services are terminated through operation of clauses 7.14 or Section 10 of these Terms.
7.10. We will provide You with a new Tax Invoice each time there is a change to the monthly service fee. Tax Invoices are designed to apply progressively once automatic payments have been approved and cleared.
7.11. Tax invoices will be sent to You in electronic form via the email to the email address provided by You in the Contact Details.
7.12. If the Services are terminated in accordance with clause 7.14 or Section 10 of these Terms and You have paid an annual Subscription Fee, We will issue a refund for the remainder of the annual Subscription Fee paid by You calculated pro rata from the first day of the month after the month in which the Services are terminated.
7.13. You will bear any bank or merchant fees which may be charged in relation to Our refund of the annual Subscription Fee.
7.14. In the event that any Payment of any part of the Subscription Fee is not received within seven (7) Business Days from when it is due (for whatever reason), We may suspend and/or terminate Your Services as follows:
(a) We must send a Notice in writing to the email address or the postal address (as determined by Us) provided by You in the Contact Details:
- (i) detailing the nature of the non-payment
- (ii) stating that Your Services are suspended
- (iii) giving You seven (7) Business Days to pay the amount in the Notice; and
- (iv) stating that Your Services will be cancelled if payment of the amount is not made within those seven (7) Business Days.
- (b) If We do not receive payment from You by the date in the Notice then We may cancel Your Services at Our sole discretion.
- (c) You are liable to pay all reasonable costs incurred by US as a result of Your non-payment of the Subscription Fee.
- (d) If We decide to terminate Your Services, any of Your backup data held on Our servers will be permanently removed as soon as practicable.
7.15. While Your Services are suspended, We will not backup any of Your data and may not provide any part of the Services at Our sole discretion.
8. Changes to Data Storage Limits, Subscription Fee and Services.
8.1. The initial Data Storage Limit provided by Us is the amount initially agreed to by You when signing up for the Services and any usage exceeding the amount initially agreed to will be charged in accordance with the pricing structures set out on the idrive Website (as may be amended from time to time).
8.2. The following will occur before Your Subscription Fee is increased:
- (a) We will advise You (via the email address given in the Contact Details) when Your data storage space reaches 90% of the limit initially agreed to by You when signing up for the Services. To prevent the backup from failing, when the backup quota reaches 95%, Our system will automatically upgrade Your plan to the maximum of the next plan;
- (b) You will be contacted via the email address given in the Contact Details to advise that this upgrade has taken place and the amount of the consequential increase in Subscription Fee;
- (c) the email will give You ten (10) Business Days to reduce the size of Your backup data and notify Us that You do not wish to accept the new plan (if You so choose);
- (d) if You fail to notify Us in accordance with clause 8.2(c), this failure constitutes Your consent to the new plan and consequential price increase for the new Subscription Fee and Data Storage Limit; and;
- (e) the increase in Subscription Fee will take effect as of the date that Your plan is increased.
8.3. Your payment in the following month will include both the Subscription Fee for the new plan and the amount of the difference between Your Subscription Fee for Your new plan over Your old plan, calculated from the date that Your plan is increased.
8.4. If You are paying Subscription Fees by bulk advance payments and plans are adjusted in accordance with this Section You will be advised by email with an adjusted remaining term.
8.5. We may change Subscription Fees and/or Data Storage Limits from time to time at Our discretion and We may change Subscription Fees and/or Data Storage Limit automatically increase to the next plan to avoid backup failure.
8.6. We may amend these Terms from time to time at Our discretion in accordance with clause 22;
8.7. You will be advised only if and when changes any impact on the monthly fees payable.
8.8. You may downgrade Your current plan to a smaller plan as currently listed on the id
8.9. rive Website in the following circumstances:
- (a) Your current data storage is under the Data Storage Limit specified in the smaller plan You wish to change to; and
- (b) You give notice in writing to Us stating Your request to change plans and the plan You wish to change to.
8.10. Where You make monthly Subscription Fee Payments and downgrade to a smaller plan, We will not refund any Subscription Fees already paid for the remaining period of the month in which the downgrade is requested in. The rate applicable to the new plan will be charged to You starting in the subsequent month to the change.
8.11. You may upgrade to a larger plan at any time, by notifying Us in writing. The increase in Subscription Fee will take effect as of the date that Your plan is increased.
8.12. When You upgrade to a larger plan, Your Payment in the following month will include both the Subscription Fee for the new plan and the amount of the difference between Your Subscription Fee for the new plan over the old plan, calculated from the date that Your plan is increased.
9. Dispute resolution
9.1. If either We or You believe an act or omission of the other party has caused it a grievance of any kind (including services procured by You from third-party entities within the scope of the supply acceptance of Your order), it must give the other party written notice of the nature of this grievance as soon as practicable after the event giving rise to the grievance.
9.2. On receipt of this notice of grievance, the parties must seek to resolve the grievance within ten (10) Business Days of the event giving rise to the grievance.
9.3. If a grievance arises out of or relates to these Terms, the parties expressly agree to mediate the dispute in good faith to be administered by the Australian Commercial Disputes Centre or such other similar entity as agreed by the parties in writing before having recourse to any other legal remedy.
9.4. Notwithstanding the above, nothing precludes Us from seeking urgent interlocutory relief to protect Our Intellectual Property Rights or other valuable rights or interests in the event of any grievance.
9.5. Should You decide to engage services procured by third-party entities within the scope of the supply acceptance of Your order, You engage such entities at entirely Your risk. We will not be responsible for service level disruptions of Yours that arise from the activities of Your third-party entities and will not entertain any disputes arising from this clause that may be raised by Your engaged third-party entities related to Our normal service provisioning scope to You.
9.6. In cases of grievances arising from services procured by You from third-party entities within the scope of the supply acceptance of Your order, We have the right to demand an independent technical audit of Your IT infrastructure and systems, the entire costs of which are to be borne by You. If and upon the audit's finds directing responsibility to the third-party entities from where You procured services, We will have the right to unilaterally terminate Your Services after a reasonable notice period of 60 (sixty) calendar days.
10. Suspension and termination of Agreement.
10.1. In addition to any other rights We may have, We may suspend Your Services if You (including any third-party service providers to You) breach any clause of these Terms as follows:
- (a) We send a notice in writing to You to the email address given as part of the Contact Details, detailing the nature of the breach, stating that Your account is suspended and giving You five (5) Business Days to rectify the breach detailed in the Notice to Our satisfaction;
- (b) if You do not rectify the breach detailed in the notice referred to in clause 10.1(a) by the date given in the notice, We must send another notice in writing to You at the email address given as part of the Contact Details, stating that Your Services will be cancelled in five (5) Business Days if You do not rectify the breach detailed in the notice to Our satisfaction; and
- (c) if You do not rectify the breach detailed in the notice in clause 10.1(a) to Our satisfaction by the date in the notice given in accordance with clause 10.1(a), then We may cancel Your Services immediately without further notice, at Our sole discretion.
10.2. While Your Services are suspended, We will not backup any of Your data or provide any other part of the Services We decide not to at Our sole discretion.
10.3. Notwithstanding clauses 10.1 and 10.2, breach of clause 5.6 constitutes a material breach of these Terms and gives Us the right to take any one or more of the following actions at Our sole discretion (and without adhering to any notice periods or other requirements that may otherwise be required):
- (a) immediately terminate or suspend the provision of the Services to You;
- (b) remove or disable access by You to any of Your data;
- (c) provide You with a notice to cease the activities or conduct giving rise to the breach;
- (d) warn You that any further repetition of the activity or conduct giving rise to the breach will result in Our immediately terminating or suspending the provision of the Services; or
- (e) report the activities or conduct giving rise to the breach to relevant authorities.
10.4. In addition to any other termination rights given to either party in these Terms, Services may be terminated by You by giving Us (10) Business Days’ notice in writing.
10.5. In the event that You terminate the Services in accordance with clause 10.4, the following applies
- (a) any of Your backup data held on Our servers will be permanently removed as soon as practicable;
- (b) all of Our obligations under these Terms cease;
- (c) any unpaid amounts due to Us from You must be paid by You within ten (10) Business Days of termination; and
- (d) any monthly Subscription Fee payment paid in advance by You will be forfeited to Us.
- (a) any of Your backup data held on Our servers will be permanently removed as soon as practicable; all of Our obligations under these Terms cease
- (b) any unpaid amounts due to Us from You must be paid by You within ten (10) Business Days of termination; and
- (c) any monthly Subscription Fee payment paid in advance by You will be forfeited to Us.
- (a) disclosure is necessary to comply with these Terms or any other agreement or obligation between the parties;
- (b) the disclosure is required by law or rules of any stock exchange on which a party is listed; or
- (c) the Confidential Information is in the public domain other than through a breach of these Terms.
10.6. Upon termination of this Agreement through the operation of clause 10.3 the following applies:
10.7. We have the right to unilaterally terminate Your Services after a reasonable notice period of 60 (sixty) calendar days upon an established valid evidence that third-party entities engaged by You within the scope of the supply acceptance of the Your order are in breach of these Terms.
11. Intellectual Property Rights
11.1. Copyright in the Website is Our property. Unless otherwise indicated, all rights (including copyright) in connection with the idrive Website (including but not limited to text, graphics, logos, button icons, video images, audio clips, code, scripts, design elements and interactive features) are owned or controlled for these purposes, and are reserved by Us and other lawful owners of intellectual property.
11.2. Material on this Website comprises copyright material, trademarks and registered trademarks which are Our property. This property may only be used for the purposes of browsing the idrive Website and acquiring Services via the idrive Website.
11.3. You agree that all intellectual property rights subsisting in the Confidential Information or any other information issued by Us to You or any other person or produced by Us remains Our exclusive property.
11.4. You must not cause or permit anything to be done, which may damage or endanger Our intellectual property rights or assist or allow any other person to do so.
11. Intellectual Property Rights
12.1. The parties agree to keep confidential all financial, technological (including designs and specifications), strategic or business information it may receive of the other party concerning or arising from an order or the provision of the Services ("Confidential Information").
12.2. All Confidential Information remains the property of the provider and may only be used by the recipient in fulfilling its obligations under these Terms.
12.3. No Confidential Information may be disclosed to any third party without the provider's written consent, except to the extent that:
12.4. Where the recipient of Confidential Information believes that it is required by law to disclose any Confidential Information of the provider, the recipient must immediately notify the provider in writing and provide assistance as reasonably required by the provider, if the provider wishes to defend or resist that requirement.
13. Goods and Services Tax (GST)
13.1. All amounts expressed on the tax invoice between You and Us are shown as GST exclusive amounts, with the GST component provided on a separate line.
13.2. We will do all things reasonably available to assist You to claim on a timely basis any input tax credits (if any) You may be entitled to claim for purchase of Services. This includes Us maintaining Our registered status for GST purposes, and issuing tax invoices for supplies made under these Terms on a timely basis as reasonably requested by You.
14. Force Majeure
We shall not be liable for any non-performance, delay, errors, data loss or other loss caused by any event reasonably beyond Our control including, but not limited to, acts of God, war, hostilities, revolution, civil disorder, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency.
All notices required under these Terms must be in writing.
Each clause of these Terms operates separately and in the event that one clause or part of one clause is found to be unenforceable, the unenforceable clause will be severed and this will not affect the enforceability of the remainder of these Terms.
Any waiver of any rights or obligations of a party must be in writing and delivered to the other party.
18. Governing Law
The parties unconditionally agree that this Agreement is governed by the laws of New South Wales, and each party agrees to be bound by the laws of this jurisdiction.
19. Entire Agreement
The parties agree that these Terms and any form for an order or Tax invoice is the entire understanding between the parties in relation to the provision of the Services and any previous discussions, negotiations or representations do not form part of this understanding. Further, neither party has relied on any representation of the other party in entering into an order or is relying on any representation or promise made by either party which is not contained in these Terms.
Sections 6, 11 and 12 of these Terms survive termination of the Services.
21. Payment of Commission by Us to third parties
You acknowledge that We may from time to time, enter into agreements with other parties whereby it pays these other parties commission for signing customers up to the Services.
22. Variation of Terms
We reserve the right to amend these Terms from time to time. Such amendments will be either (a) published on the idrive Website or (b) notified to You via email directing You to a link.