Terms / EULA

This Service Level Agreement (“SLA”) between Telasis Solutions Pty Ltd (“iCubby”) and you (“you”) sets forth the service level terms and conditions with respect to the cloud-based automated data backup services offered by iCubby, currently via www.icubby.com.au (the “Cloud Backup Services”).

 

Introduction

iCubby is dedicated to making the Cloud Backup Services easy to access and to use and to providing you with the highest standards of service. This SLA formally sets forth iCubby’s commitment to ensure 99.9% uptime of the Cloud Backup Services.

 

Availability

For as long as you are subscribed to the Cloud Backup Services in accordance with the Terms of Use, iCubby will ensure that the Cloud Backup Services will be available and operational at an annual Uptime Percentage of at least 99.9%, as measured over any calendar month (the “Service Level Goal”). If iCubby fails to meet the Uptime Percentage in any calendar month, and as long as you have met your obligations under the Terms of Use, you may notify iCubby of such failure by sending an email to iCubby at support@icubby.com.au, and iCubby will provide you with a Service Credit. The Service Credit is your sole and exclusive remedy for a failure by iCubby to meet the Service Level Goal.

 

SLA Exclusions

The SLA does not apply to any services that expressly exclude this SLA (as stated in the documentation for such services) or to Downtime resulting from:

 

Amazon Web Services outage or other causes beyond iCubby’s reasonable control, including force majeure events; or
Your or any third party’s equipment, services, actions or lack thereof.
iCubby scheduled maintenance and version upgrades.

 

Definitions

“Downtime” means the total number of minutes in a calendar month during which the Cloud Backup Services are unavailable or inoperable.

 

“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.

 

“Service Credit” means a credit calculated as the difference between the Service Level Goal and the Monthly Uptime Percentage, multiplied by the monthly fee payable by you to iCubby for the applicable month in accordance with the Terms of Use.

“Terms of Use” means the iCubby Terms of Use available at Terms Of Use.

This Privacy Policy explains the practices and policies of Telasis Solutions Pty Ltd (“Telasis”) regarding the collection and protection of Personal Data supplied by users or collected by us from users of Telasis websites, including icubby.com.au, Telasis.com.au, and the iCubby and iCubby backup services (the “Service”).

 

Telasis defines “Personal Data” as any data from which it is practical to directly determine the identity of an individual. Any capitalized terms not defined in this Privacy Policy have the meanings given in the Service’s License and Product Agreement (the “User Agreement”). This Privacy Policy may be updated by Telasis from time to time. Telasis will provide notice of materially significant changes to the Privacy Policy by posting notice on its websites.

 

By registering to use the Service, you agree (1) to comply with the terms and conditions of this Privacy Policy and (2) Telasis may process (i.e., collect, use, etc.) your Personal Data as described in this Privacy Policy or the User Agreement. Personal Data may be processed by Telasis in the country where it was collected as well as other countries (including the United States) where laws regarding processing of Personal Data may be less stringent.

 

Personal Data
Once you register with Telasis and sign in to the Service, you are not anonymous to Telasis.

When registering with Telasis, you provide Personal Data, which may include company name, industry, number of employees, phone number, your title, city, state, country, zip code, a user name, and a confirmed email address. When backing data up with the Service, you send us that data and you also are sending file system information, including names of files and directories. Telasis may also record your IP address when you submit information.

 

Telasis also may collect, at your option, certain preference and demographic information from you.

 

All information collected by Telasis is used for internal purposes of providing the Service, providing support to users, and to improve services. Aggregating non-identifying information supplied by users allows Telasis to understand its user base and to improve services.

 

iCubby may also use your company name, logo, and feedback for marketing purposes. For example, iCubby may use information you provide to contact you to further discuss your interest in our products or services and to send you information regarding iCubby and its partners, such as information about promotions or events.

 

To protect your account information, please keep your password secure.

 

All Users may opt to remove their Personal Data from our live database by contacting Telasis and canceling their Telasis user account. Users of the icubby.com.au Services may also cancel their user account by logging into their account, selecting My Account, and clicking on Delete Account or request from the person who added that person to the account for removal.

 

Telasis does not intentionally gather Personal Data about visitors who are under the age of 13.

 

We will not sell or market the email addresses or other collected personal information of registered Users to third parties.

 

We will not view the files that you backup.

 

We may view your file system information (file extensions, sizes etc. but not your file contents) to provide technical support.

 

You acknowledge and agree that Telasis may occasionally send you administrative communications regarding your account or the Service via email.

 

Cookies and Passive Data Collection
Telasis uses cookie, IP address, and URL information to improve and further develop the Service, and to provide enhanced or geographically differentiated features and service levels to Users, where available. Telasis uses cookies to save User screen names, session validations, and on Users’ browsers and hard drives, and may use them to provide tailored products and services to those Users, as they become available.

 

IP Addresses also help us diagnose network congestion, problems with our servers and otherwise assist in the administration and delivery of the Service to our Users.

 

Links to Third Party Sites
Telasis websites may contain links to other sites that are not under our control. These websites have their own policies regarding privacy. You should review those policies before visiting the websites. We have no responsibility for linked websites, and we provide these links solely for the convenience and information of our visitors.

 

Telasis Service Providers
Telasis does not disclose Personal Data to third parties, except to process credit card information for orders. However, at a future time, Telasis may need to provide users’ Personal Data to other third parties to deliver specific services to the user (such as hosting services or support services). These third parties will be required to adhere to Safe Harbor Privacy Principles or at a minimum Telasis will require the third party to certify they follow privacy protection equal to Telasis’s. Users will also be provided with a mechanism to opt-out of having their Personal Data viewed by such third parties.

 

Legal Requirements
Telasis does not disclose Personal Data, including the data you back up with the Service, unless disclosure is necessary to comply with an enforceable government request such as a warrant.

 

Change of Ownership
In the event of a change in ownership, or a direct merger or acquisition with another entity, we reserve the right to transfer all of Telasis User information, including Personal Data, to a separate entity. We will use commercially reasonable efforts to notify you (by posting on our website or an email to the email address you provide when you register) of any change in ownership, merger or acquisition of Telasis’s assets by a third party, and you may choose to modify any of your registration information at that time.

 

Telasis uses industry standard security measures to protect against the loss, misuse and alteration of the information under our control. Although we make good faith efforts to store the information collected by Telasis in a secure operating environment that is not available to the public, Telasis cannot guarantee complete security. Further, while we take reasonable steps to ensure the integrity and security of our network and systems, we cannot guarantee that our security measures will prevent third-party “crackers” from obtaining this information.

 

You may, at any time, choose to correct or update the information you have submitted to Telasis by updating your account on our website.

 

If you cancel your account, your Personal Data and other information may be retained in our archive or backup records.

 

If you have a dispute or complaint about privacy on a Telasis website, we kindly ask that you attempt first to resolve the issue directly with Telasis by emailing support@icubby.com.au.

 

Telasis reserves the right in our sole discretion to revise, amend, or modify this policy and our other policies and agreements at any time and in any manner. Notice of any revision, amendment, or modification of this policy will be posted on Telasis websites, and a User’s continued use of the Service will signify agreement to such changes.

 

Effective Date: April 02, 2016

General
This End User License Agreement, including the Privacy Policy, Terms of Service, and Frequently Asked Questions (FAQs), which are incorporated herein by this reference and which you can access by clicking on each of the hyperlinks above (collectively, the “Terms”), are a binding contract between you and Telasis Solution. (“iCubby”). You may print the foregoing documents using the print function in your browser. You understand and agree that by installing, accessing, or using the software, products, services, applications and associated documentation and Enhancements (collectively, the “iCubby Products”), you will be bound by these Terms. If you agree to these Terms on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to these Terms and your agreement to these Terms will be treated as the agreement of the business or organization. In that event, “you” and “your” will refer to and apply to the user of the iCubby Products or that business or organization, as required by the context. If you do not agree with these Terms, iCubby is not willing to license to you and you may not use the iCubby Products.

 

Your License
The iCubby Products are licensed and not sold to you. During the term of your subscription, iCubby grants to you a revocable, limited, non-transferable, non-exclusive license to use iCubby Products, solely in connection with the backup of your data. Except for the limited license granted in these Terms, iCubby and its licensors retain all right, title and interest in and to the iCubby Products, all copies thereof, and all proprietary rights therein, including copyrights, patent, trademark and trade secret rights. You may not copy or distribute iCubby Products, except to the extent that copying is necessary to use iCubby Products for the purposes set forth herein. You may not reverse engineer, decompile, disassemble, modify, or create derivative works of iCubby Products. You may not alter or modify any disabling mechanism which may be included in iCubby Products. You may not assign, sublicense, rent, timeshare, loan, lease, or otherwise transfer iCubby Products, or directly or indirectly permit any third party to copy iCubby Products. You may not remove any proprietary notices (e.g., copyright and trademark notices) from iCubby Products. You must reproduce the copyright and all other proprietary notices displayed on iCubby Products and on each permitted backup or archival copy. All use of iCubby Products shall be in accordance with these Terms and its then-current documentation. You shall be solely responsible for ensuring that your use of iCubby Products is in compliance with all applicable foreign, federal, state and local laws, rules and regulations.

 

How It Works
iCubby Products save a copy of each file that is automatically selected for backup and other files you designate for backup (your “Backed-up Data”) to a server operated by Amazon. iCubby Products automatically scan for changes or additions to the Backed-up Data and then periodically re-save a copy or a part of a modified file or create a copy of a newly designated file. For a complete list of the files iCubby is backing-up for you, please refer to the iCubby web console. You can check whether iCubby is backing-up specific files by going to iCubby Timeline located in your Computer, Web console, or from your mobile. If you are unable to locate your file, iCubby is not backing-up that file. Your Backed-up Data may not be available or restorable if: (i) iCubby has not completed copying your selected files or changed files; (ii) for files, folders, or disk drives that are not automatically backed-up, you do not manually select them for backup, or you unselect a file for backup; (iii) you delete a person from your iCubby account; (iv) you move a file to a location on your computer that is not automatically scanned to select files for backup or you upgrade your operating system resulting in changes to your file mapping; (v) your computer is unable to access the internet or to Amazon s3 Storage; (vi) you fail to follow iCubby’s technical requirements, including upgrading the version of your iCubby Products as required; or (vii) you terminate your license or fail to renew your subscription to iCubby Products. For additional information about the status of your Backed-up Data Frequently Asked Questions (FAQs)

 

Enhancements and Feedback
Enhancements. iCubby may (i) automatically update the iCubby Products installed on your computer without your prior notice, (ii) upgrade, enhance, change and modify (collectively, the “Enhancements”) the iCubby Products, or (iii) discontinue or retire the iCubby Products or any aspect or feature of the iCubby Products, including the types of files and data that are backed-up (not every file on your computer is backed-up) or the availability of iCubby Products on any particular device or communications service at any time and from time-to-time in its sole discretion. Any Enhancements made available to you will be subject to these Terms. iCubby will use reasonable efforts to provide notice of material changes to the iCubby Products or changes to these Terms by posting them to Product Agreement. It is your responsibility to periodically check iCubby’s web site to inform yourself of any such modifications. Changes to these Terms, which may be made in iCubby’s sole and exclusive discretion, will be effective upon acceptance of these Terms (as described herein) for new subscriptions and effective for all existing users thirty (30) calendar days after the posting of the new Terms on iCubby’s web site at Product Agreement You agree to be bound to these Terms, as modified. If you do not agree to the modified Terms you are not permitted to use the iCubby Products and must terminate your subscription immediately.

 

Feedback
You may provide feedback to iCubby with respect to the iCubby Products. iCubby may use feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the feedback, you hereby grant iCubby an irrevocable, non-exclusive, perpetual, royalty free license to use the feedback in connection with iCubby’s business, including enhancement of the iCubby Products.

 

Term
Term and Termination. These Terms and your license to the iCubby Products will commence at the time and on the day you install, access, or use the iCubby Products, whichever is earlier. These Terms, your license and your subscription to the iCubby Products will automatically terminate or expire upon the earlier of (i) non-renewal, cancellation, or expiration of your subscription or your failure to pay invoices when due, (ii) iCubby’s discontinuance of the iCubby Products, or (iii) failure to comply with these Terms. If any third party makes an intellectual property infringement claim relating to the iCubby Products, iCubby reserves the right to immediately terminate your subscription to the affected iCubby Products. iCubby MAY, IN ITS SOLE DISCRETION, DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE iCubby PRODUCTS, INCLUDING SUSPENDING OR TERMINATING YOUR LICENSE AND ACCOUNT WITH iCubby IF YOU ARE USING THE iCubby PRODUCTS IN A MANNER NOT INTENDED OR IN VIOLATION OF LAW.

 

Effect of Non-Renewal or Termination
Upon any non-renewal, termination, or expiration of your subscription to the iCubby Products (i) the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the iCubby Products, (ii) the iCubby Products may be disabled by iCubby without notice to you, and (iii) you will no longer have the right to access or retrieve your Backed-up Data. You acknowledge and agree that iCubby’s policy is to automatically delete all of your Backed-up Data upon non-renewal, termination, or expiration of your subscription to the iCubby Products and that it is solely your responsibility to seek another source for your backup needs.

 

Trial and Evaluation Licenses
You may try the iCubby Products prior to paying for a full subscription by licensing a trial, evaluation, or other limited version (an “Evaluation Version”). Your license to an Evaluation Version of the iCubby Products will automatically terminate upon the earlier of (i) the expiration or cancellation of the evaluation period, (ii) when the iCubby Product is no longer made available, (iii) when iCubby cancels your license to the Evaluation Version, or (iv) when your computer has not accessed the iCubby server for more than thirty (30) calendar days. You acknowledge and agree that iCubby’s policy is to automatically delete all of your Backed-up Data upon termination or expiration of any Evaluation Version and that it is solely your responsibility to seek another source for your backup needs.

 

Disclaimer of Warranties; Indemnification; Limitation of Liability
iCubby Products. THE iCubby PRODUCTS MAY CONTAIN OR iCubby MAY PROVIDE TO YOU THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING, OR YOU MAY OBTAIN THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING FROM THIRD PARTIES DIRECTLY, (“THIRD PARTY COMPONENTS”). THE iCubby PRODUCTS, ALL THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. iCubby AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE iCubby PRODUCTS, THE THIRD PARTY PRODUCTS AND ALL BETA SOFTWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE iCubby PRODUCTS. iCubby DOES NOT WARRANT THAT THE iCubby PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE iCubby PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE iCubby PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHIMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT YOUR INSTALLATION, USE AND ACCESS OF THE iCubby PRODUCTS, THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER, SOFTWARE AND THE LOSS OF BACKED-UP DATA THAT RESULTS FROM THE USE THEREOF. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY iCubby SHALL CREATE ANY ADDITIONAL iCubby WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF iCubby’S OBLIGATIONS HEREUNDER. YOU HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST iCubby AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF YOUR USE OF THE iCubby PRODUCTS, THIRD PARTY COMPONENTS AND BETA SOFTWARE. THE iCubby PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT iCubby DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. iCubby SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

 

Beta Applications
iCubby may designate certain Enhancements and new releases of the iCubby Products as “Beta Software.” Beta Software is not ready and is not intended for use in a production environment. At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results. You acknowledge and agree that (i) the Beta Software is experimental in nature and has not been fully tested, (ii) the Beta Software may not meet your requirements or perform as intended, (iii) use of the Beta Software may not be uninterrupted, error free, or free of faults, (iv) your use of the Beta Software is for the sole purpose of evaluating and testing the product and providing feedback to iCubby, and (v) you shall inform your employees, staff members and other users regarding the nature of the Beta Software. Your use of the Beta Software is and shall be subject to these Terms.

 

Indemnification; Limitation of Liability
YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR CONDUCT, YOUR DATA, AND YOUR BACKED-UP DATA RELATED TO THE iCubby PRODUCTS. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD iCubby, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SUPPLIERS AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, DAMAGE, LIABILITY AND EXPENSE (INCLUDING ATTORNEYS’ FEES, EXPERT FEES AND OUT-OF-POCKET EXPENSES) ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH YOUR BREACH OF THESE TERMS, YOUR USE OF THE iCubby PRODUCTS, OR YOUR BACKED-UP DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL iCubby OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR DATA, OR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA AND BACKED-UP DATA, BUSINESS INTERRUPTION, OR LOST REVENUES, ARISING OUT OF YOUR USE OR INABILITY TO USE THE iCubby PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE, OR YOUR USE OF DATA OR FILES STORED THEREIN, EVEN IF iCubby HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE)). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF iCubby AND ITS AFFILIATES, SUPPLIERS AND LICENSORS FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE LICENSE FEES PAID BY YOU TO iCubby IN THE 30 CALENDAR DAYS PRIOR TO THE DAMAGES ARISING. IF THE iCubby PRODUCTS ARE PROVIDED TO YOU WITHOUT CHARGE, THEN iCubby SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE iCubby PRODUCTS. Some jurisdictions do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the foregoing terms may not apply to you.

 

Governing Law and Arbitration
These Terms shall be governed, construed and enforced in accordance with the laws of the United Kingdom without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with these Terms, shall be in the state or federal courts, as applicable, located in the City of London, UK.

 

Any dispute, controversy, or claim arising out of or relating to this Agreement, including the arbitrability of the matter or the formation, interpretation, scope, applicability, termination, or breach thereof, shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed “international” within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in London, UK. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgment upon the arbitral award may be entered by any court having jurisdiction. This section shall apply to and require arbitration of all disputes, controversies and claims, regardless of whether such disputes, controversies, or claims concern a single individual, entity, or other person, multiple individuals, entities, or other persons, or classes of individuals, entities, or other persons.

 

Additional Terms
Privacy See iCubby’s Privacy Policy, which you can access by clicking Privacy Policy for information and notices concerning iCubby’s collection, use and security of your personal information.

 

Export
You shall not export, directly or indirectly, the iCubby Products to any country for which the United Kingdom requires an export license or other governmental approval. You shall not use the iCubby Products to store, backup, or distribute child pornography or other illegal files or data. You shall defend, indemnify and hold iCubby harmless from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees, expert fees and out-of-pocket expenses) arising out of any claim that you are storing child pornography or other illegal files or data, or that the iCubby Product was exported or otherwise shipped or transported by you in violation of applicable laws, rules and regulations.

 

Termination and Fair Use Policy
iCubby SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF iCubby PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY iCubby TO BE USING THE iCubby PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY iCubby OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH iCubby AND THE LICENSE TO USE THE iCubby PRODUCTS OR SERVICES. iCubby Products or Services are designed to serve the needs of particular types of users, such as individual consumers or small businesses. If you have purchased a iCubby Product or Service that is inappropriate for your actual usage, for example if iCubby believes that you are using our home service for business or commercial use, iCubby will require you to switch to an appropriate iCubby Product or Service. This may result in you having to pay iCubby additional fees for use of the appropriate product or to terminate your purchased iCubby Products or Services.  iCubby determines business use as excessive backup of media files e.g. photos or videos in excess of 500GB. iCubby also reserves the rights to limit, terminate, or add additional fees to the service in case of excessive outbound streaming.   iCubby may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of iCubby Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of iCubby Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of iCubby ‘s customers, generally. We monitor the usage of our heaviest account users and excessive outbound video streaming, a dynamic margin is calculated based upon averages which, should a user fall into, we may require them to cease backup, limit video streaming, or move onto a business account. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or iCubby Product or Service that will permit you to continue to use iCubby Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to use iCubby Products or Services and any license to use the iCubby Software, without prior notice in the event of a violation of this policy. If iCubby believes that you are breached our Fair Use Policy and the user has not switched to a Business Service, or failed to pay the additional fees, iCubby will allow the user 14 days from date of first communication to retrieve their data before deletion of the users account and data. 1st notice will be sent 14 days before account deletion and 2nd notice will be sent 2 days before account deletion. All communications will be sent to the email address attached to the users account. iCubby has a zero tolerance policy and will immediately terminate accounts that violate the law in any way, including storing, publishing or sharing material that’s fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.

General
These Terms, which incorporate the Privacy Policy , Product Agreement ,and Frequently Asked Questions (FAQs), each of which you can access by clicking on these links or navigating the tabs above, constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. In particular, if you are a current licensee of iCubby Products, these Terms shall supersede your existing license agreement and that agreement shall be of no further force or effect. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. As used in these Terms, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” If one or more of the provisions herein shall be held invalid, illegal, or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired. The failure to enforce or the waiver by either party of a default or breach of the other party shall not be considered to be a waiver of any subsequent default or breach. If you or iCubby cannot perform its obligations under these Terms because of any act of God, accident, strike, court order, fire, riot, war, failure of third party equipment, or any other cause not within the affected party’s reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing party will: (i) promptly notify the other party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure Event continues for five (5) or more business days, iCubby may terminate your subscription to the iCubby Products and these Terms by providing written notice to you. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. The following provisions shall survive termination or expiration of this Agreement: Account Access and Ownership; Effect of Non-Renewal or Termination; Disclaimer of Warranties; Indemnification; Limitation of Liability; Governing Law and Arbitration; and Additional Terms. Any inconsistency between these Terms in English and these terms in any other language shall, to the fullest extent permitted by applicable law, be resolved by reference to the English version.

 

Third Party Software Credits
The following is a list of the third party software and images we have included in Telasis’s products/website. We are thankful to all individuals that have created these.
These components require that their credits are to be included on our site:
xDelta:

 

http://code.google.com/p/xdelta/
AlphaVSS:

 

Copyright (c) 2008-2011 Peter Palotas
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

 

Revised on April 02, 2016

These terms of service (“Terms”) are a legal agreement between you, either an individual or a single legal entity (“You” or “you”), and Telasis Solutions. Telasis Solution operates the iCubby online services and are referred to in these Terms as “iCubby.” These Terms govern your use of any iCubby online services (“Services”), the iCubby website (“Site”), the client software distributed with this Agreement and any other software provided by iCubby, including any updates and any accompanying written documentation (“Software”). Collectively, the Software, the Site and the Services may be referred to as the “Products.” By clicking the “I AGREE” or similar button, or using any Products, you agree to these Terms. If you do not agree to these Terms, then do not indicate acceptance and do not use the Products. If you agree to these Terms on behalf of a legal entity, you represent that you have the authority to bind that legal entity to these Terms.

 

You must register with iCubby to use the Services, and you agree to keep your registration information accurate, complete and up-to-date as long as you continue to use the Services. iCubby Home currently offers a free personal account with limited storage capacity (“Free Account”) and various fee-bearing accounts offering larger storage capacities and other feature enhancements (“Paid Accounts”). If you sign-up for a Paid Account, you agree to pay the fixed subscription and variable usage-based fees with a 30-day money back period, if any, for the account type you have selected and agree to any applicable restrictions, including quotas on the amount of storage you are allowed to use. If you exceed any quota allocated to your account, you agree that iCubby may restrict your ability to backup further data until you reduce your storage usage or upgrade your account. If you use a credit card for payment, you authorize iCubby to automatically renew your subscription and charge the then-current renewal fees to the credit card associated with your account unless you notify iCubby in advance that you do not want your subscription renewed.

 

You are responsible for keeping your passwords secure, and you agree not to disclose your passwords to any third party. You are solely responsible for any activity that occurs under your user names and accounts, including any sub-accounts. If you lose your passwords or the encryption keys for your accounts, you may not be able to access your backup data. You must notify iCubby immediately of any unauthorized use of your accounts or any other security breach related to the Service. If iCubby determines that a security breach has occurred or is likely to occur, iCubby may suspend your accounts and require you to change your user names and passwords.

 

You agree that iCubby’s collection, use and disclosure of your personal information, backup data or any other data will be governed by iCubby’s Privacy Policy, which is incorporated into these Terms by reference.

Subject to these Terms, iCubby grants you a limited, non-exclusive, non-transferable and revocable license to access the Site and use the Services and Software. You may install and use the Software in executable form only on the number and type of devices that are specified in the then-current documentation for your account type as described on the Site or as specified in other transaction documentation provided by iCubby or an authorized reseller. You acknowledge that certain third party code may be provided with the Software and that the license terms accompanying that code will govern its use.

 

You acknowledge that iCubby or third parties own all right, title and interest in and to the Products, including all intellectual property rights. Except for the license granted in these Terms, iCubby and its licensors retain all rights in the Products, and no implied licenses are granted to you.

 

You specifically agree that you will not, nor will you permit another person to:

 

sublicense, lease, rent, loan, transfer or distribute any portion of the Products;

 

modify, adapt, translate or create derivative works from the Products;

 

decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products; or

 

remove, obscure, or alter any trademark, copyright or other proprietary rights notices displayed in the Software or on the Site.

 

You are solely responsible for your conduct related to the Service and any backup data you store on the Service. You specifically agree that you will not use the Products to:

 

violate any laws or regulations;

 

infringe the intellectual property or other rights of third parties;

 

transmit any material that contains viruses or other harmful computer code or files such as Trojan horses, worms or time bombs.

 

iCubby respects the intellectual property of others and requires that users of the Service do the same. When you use the Products, you may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. In appropriate circumstances, iCubby will terminate the accounts of infringers.

 

You agree to defend, indemnify, and hold iCubby, its suppliers, resellers, partners and their respective affiliates harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable attorney fees and costs, in connection with:

 

your use of the Products

 

your violation of these Terms;

 

your violation of any third party right, including any intellectual property right; or

 

any claim that use of your backup data caused damage to a third party.

 

This indemnity obligation will survive the termination or expiration of your account and these Terms.

 

iCubby reserves the right at any time to modify, suspend, or discontinue providing the Service, in whole or in part, without notice. While not obligated to do so, iCubby will use commercially reasonable efforts to notify you of any such action by sending you an e-mail, an in-client message or by posting relevant information on the Site.

 

iCubby reserves the right to modify these Terms at any time, and each such modification will be effective upon posting on the Site. All material modifications will apply prospectively only. Your continued use of any Products following any such modification constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by these Terms, you must stop using the Products immediately.

 

These Terms, and any posted revisions, remain in effect as long as you continue to maintain an account or use the Services. You may terminate your account at any time, for any reason, by following the instructions on the Site and discontinuing use of the Products.

 

If you have a Free Account, iCubby may terminate your account and these Terms immediately and without notice if iCubby software fails to access the Service or to perform a backup for more than thirty (30) days (iCubby is not actively installed on your computer) or you fail to comply with these Terms. If you have a Paid Account (Premium or Business), iCubby may terminate your account and these Terms after (30) days and without notice if you fail to renew your subscription, fail to pay any fees or invoices when due or otherwise fail to comply with these Terms.

 

On termination or expiration of your account or these Terms, you will no longer have the right to continue to use the Software and the Services, and you will no longer be able to access and restore your backup data. Also, you specifically agree that iCubby has no obligation to provide you or anyone else with a copy of your backup data and may automatically purge your backup data from iCubby systems.

 

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

 

YOU SPECIFICALLY AGREE THAT YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. iCubby, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, iCubby, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES MAKE NO WARRANTY THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE PRODUCTS WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE; AND (D) ANY DEFECTS OR ERRORS IN THE PRODUCTS WILL BE CORRECTED.

 

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE PRODUCTS ARE NOT INTENDED OR SUITABLE FOR USE IN APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

 

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.

 

YOU SPECIFICALLY AGREE THAT iCubby, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY YOU ARE SEEKING DAMAGES AGAINST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS OR IN ANY WAY RELATING TO THE PRODUCTS.

 

IF YOU HAVE A PAID ACCOUNT, YOU AGREE THAT THE AGGREGATE LIABILITY OF iCubby, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO THE AMOUNT PAID FOR THAT ACCOUNT DURING THE 30 DAY PERIOD BEFORE THE RELEVANT CLAIM. IF YOU HAVE A FREE ACCOUNT, YOU AGREE THAT THE AGGREGATE LIABILITY OF iCubby, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO ONE US DOLLARS ($1). YOU SPECIFICALLY AGREE THAT THIS DAMAGES LIMITATION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND iCubby.

 

You acknowledge that use of the Products may be subject to the export and import laws of the United Kingdom and other countries. You agree to comply with all export and import laws and regulations. In particular, you acknowledge that the Products may not be exported or re-exported to any U.K. embargoed countries or to anyone on the U.K. Treasury Department’s list of Specially Designated Nationals or the U.K. Department of Commerce Denied Persons List or Entity List. By using the Products, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Products for any purposes prohibited by U.K. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

 

These Terms and the relationship between you and iCubby will be governed by the laws of the United Kingdom, excluding its conflicts of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located in London to resolve any dispute or claim arising from these Terms. As to intellectual property rights, you specifically agree that iCubby may file an action in any jurisdiction to protect or enforce its rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.

 

These Terms constitute the entire agreement between you and iCubby and completely replace any prior agreements between you and iCubby in relation to the Products. If any part of these Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of iCubby to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these Terms, there will be no third-party beneficiaries to this agreement. You agree that any claim or cause of action related to these Terms or the use of the Products must be filed within one (1) year after the cause of action arose or be forever barred.

 

You may not assign or transfer any of your rights or obligations under these Terms to a third party without the prior written consent of iCubby. iCubby may freely assign this Agreement.

 

Last Revised April 02, 2016

iCubby DMCA Policy
iCubby (“iCubby”) respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.K. Copyright Office website at http://www.ipo.gov.uk/types/copy.htm, iCubby will respond expeditiously to claims of copyright infringement committed using the iCubby service and/or the iCubby website (the “Site”) if such claims are reported to iCubby’s Designated Support email identified in the sample notice below.

 

If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to iCubby’s Designated Copyright Agent. Upon receipt of Notice as described below, iCubby will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Site.

 

DMCA Notice of Alleged Infringement (“Notice”)

 

Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to iCubby’s Designated Copyright Agent:

 

Copyright Agent
iCubby.
support@icubby.com.au