Terms of Use

BACKUPIFY TERMS OF USE

Updated as of April 1, 2023

These Backupify Terms of Use (“Terms”) govern your use of Backupify Products and Services (collectively referred to herein as the “Product“).  By purchasing or using the Product, you agree to be bound by these Terms, which are incorporated into the Kaseya Master Services Agreement (the “Agreement”) between you, Backupify and Backupify’s affiliated companies, including its parent company Kaseya Holdings, Inc. and Kaseya’s affiliates (“Backupify”).   Capitalized terms not defined in these Terms have the meaning given to them in the Agreement.

If You do not agree to these Terms and the Agreement, you may not register, access or use the Products.

1.  USE OF PRODUCTS

a.   Right to Use. Subject to your compliance with these Terms, the Agreement and the receipt by us of all fees applicable to the Product, Backupify grants you a limited, revocable, non-sublicensable, non-exclusive right and license to access and use the Product for the number of licenses and/or the applicable data storage allotment in each Product account in accordance with the Product Specifications.  Unless otherwise specified, you will receive the current standard Product features and functionality (such as number and frequency of backups) for the applicable Service Plan and for the number of licenses in each Product account under your Backupify portal account.

b. Accounts and Licenses. Each Product account (an “Account”) backs up data of individual users associated with an existing domain account (each a “User” and a “Domain,” respectively).  Product licenses are required for all protected Users allocated to an Account regardless of status (e.g., active, paused, archived) or other specified seat usage in accordance with the Product Specifications. All Product licenses allocated to the same Domain must have the same Service Term.

c.   Account Registration/Set up. You are required to set up each Account in accordance with the Product Specifications. During set up, you agree to provide accurate and complete information, and you further agree to promptly update this information should it change. Each User that is designated for backup upon account set-up will automatically provision a Backupify license, as applicable, or use an available license that has already been purchased.   All Users added to an Account after initial account registration by any Administrator of the Account, either manually or through any enabled automatic add features, will automatically provision an additional license or use an available license that has already been purchased.  You acknowledge that you are responsible for any features you enable for each Account, either at set up or at any time thereafter, including but not limited to, automatic add and license cap features.

d. Backup Process. The term “Backedup Site” means a third party website or web-based application or service (such as, for example, Microsoft O365 or Google Workplace) with which the Backupify Product interacts to obtain copies of Content that exists on the Backedup Site. Backupify will undertake commercially reasonable efforts to save a copy of the Content that you have designated for use and backup by the Backupify Product to a server operated by Backupify. In accordance with the Order and Documentation, Backupify will automatically poll the API of a Backedup Site for changes or additions to the Content and periodically re-save a copy of a modified file or create a copy of a newly designated file. You, on behalf of Users and for yourself, hereby authorize Backupify to access and interact with the Backedup Sites so Backupify can retrieve and store copies of the Content. Backupify will store the unique authorization code provided to Backupify by the Backedup Site (a “Token”) to access such site on you or a User’s behalf.

e.    Additional Data Processing Terms.  If an Account is configured to store Content in the European Economic Area or the United Kingdom, the Backupify European Data Processing Addendum is incorporated into these Terms of Use. If an Account is configured to process personal information of California consumers, under the California Consumer Privacy Act of 2018, as amended from time to time (collectively the “CCPA”), we are a “service provider” with respect to the personal information of California consumers we process.  We will not sell such personal information and will not retain, use or disclose such personal information for any purpose other than for the purpose described in these Terms, or as otherwise permitted by the CCPA or applicable law.

f.   Rights and Responsibilities Regarding Content and Product Use.

I.   License to Content. On behalf Users, you (i) represent and warrant that you and/or the User have sufficient rights and all required third party consents, permissions or licenses in and to the Domain and Content as may be necessary and appropriate for use of the Content with the Product; and (ii) hereby authorize us to access and interact with the Domain to retrieve Content; and (iii) hereby grant to Backupify a limited, royalty-free, non-exclusive, assignable license to copy, reformat, disclose, transmit, scan, display and otherwise use the Content as necessary or desired, in each case solely for the purposes of providing the Product or as otherwise necessary for Backupify to exercise its rights under these Terms. You and/or the applicable User is responsible for the accuracy, quality and legality of the Content, and the means by which rights to the Content for use with the Product were acquired.

II.    You must maintain authorization and access to the Domain(s) and Backedup Sites so that we are regularly able to access it for purposes of providing the Product. You agree and acknowledge that Content may not be available or restorable a) if our access authority to a Domain or Backedup Site is changed or otherwise restricted; b) due to unavailability of the Domain or Backedup Site, or any portion thereof; c) if the Domain or Backedup Site provider amends its API guidelines in such a way that affects our ability to access the Domain to provide the Product; and/or d) with respect to modifications to the Content that are not captured in the backup frequency or retention schedule for the Service Plan chosen.

III.   Third Party Administrator Responsibilities Regarding Content and Product Use. If you are a third-party Administrator managing or using the Product on behalf of another entity such as a client (a “Client”) client, you represent and warrant that you are acting as an agent on behalf of the Client and that you are acting within the scope of your agency. Accordingly, you agree to obtain the Client’s authorization and comply with Client’s instructions at all times with respect to use of the Product and access to Content, including but not limited to: Service Subscription, backup settings, access controls, management, retention and deletion of Content, transition of an Account or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among an Administrator, Client and/or Backupify. Backupify expressly may rely on the authorization of any Administrator with respect to access and control of an Account or Content.

IV.   Backupify’s Use of Content. Except for the limited license granted hereunder, the User retains all of its existing rights in and to Content. Backupify will use and process the Content only as necessary to provide and support the Products and will not otherwise access Content other than as permitted under the Agreement, these Terms of Use, or as authorized by an Administrator for support.

VI.   Client Terms for Managed Accounts. If you resell a Product to a Client, act as a Product Administrator for a Client or if you authorize a Client  to directly use or support a Product, you must ensure that the Client agrees to the Backupify Client Terms in substantially the form attached as Exhibit A hereto as part of a valid, enforceable contract between you and the Client.

2.  SERVICE SUBSCRIPTIONS

a.  Service Subscription Required.   All Product licenses must be included in a valid Service Subscription for which we receive timely payment.  A Service Subscription includes a group of licenses that have the same Term Length and Service Plan.

b.  Service Plan. Each Service Subscription requires a particular Service Plan regarding the retention of backups. All Service Plans include licenses to the technology needed to perform backup functions and access to Backupify Technical Support.   The retention applicable to each Service Plan determines how and for how long Content associated with an Account is retained.   In general, Content associated with Accounts enrolled in any Service Plan will be retained, as specified in the applicable Service Plan, for as long as the Account has appropriate licenses provisioned to it under an active Service Subscription for which payments are current.

c.  Service Plans:

I.   Time Based Retention Service Plan.  In this Service Plan, incremental data backups are maintained for one year on a rolling basis, with the oldest incremental backups deleted first after one year. Automatic consolidation of incremental backup recovery points is applied on a rolling basis:

  • 3x daily backups are retained for 30 days
  • Daily backups are kept after 30 days
  • Weekly backups are kept after 90 days, then stored rolling for up to 1 year

II.   Infinite Cloud Retention Service Plan.  In this Service Plan, incremental backups are retained for an indefinite period of time. Automatic consolidation of incremental backup recovery points is applied on a rolling basis:

  • 3X daily backups are retained for 30 days
  • Daily backups are kept after 30 days
  • Weekly backups are kept after 90 days
  • Monthly backups are kept after a year, then stored for selected retention period.

III. Limitations on Storage.  Unless otherwise specified, Service Plans and Accounts are not limited to a pre-defined amount of Backupify Cloud storage.  However, all access and use of all Service Plans and Accounts are subject to Fair Use policies that prohibit use that:

  • Results in excessive bandwidth or storage;
  • Harms Backupify services, networks or other resources; and/or
  • Circumvents the intended use of the Product.

d.  Term Length.  The term of a Product Service Subscription is for a defined number of consecutive months (a Committed Service Term).  A Service Subscription shall commence on the date the first Product license in the Service Subscription is provisioned for an Account or the date on which an Order placed with a Backupify account executive is accepted.  A Service Subscription always ends on the last day of a calendar month.  For invoicing and renewal purposes, a Committed Service Term will commence on the first of the month following the start of the Service Subscription and will remain in effect for the defined number of consecutive months.

e.   Committed Service Term High Watermark.  If licenses in a Service Subscription are purchased for a Committed Service Term, that Committed Service Term will apply for the initial license(s) and for any additional licenses added to the same Service Subscription. The number of licenses, including licenses added after the initial licenses in a Service Subscription, may not be decreased from the high watermark and are committed for the remainder of the then-current Committed Service Term so that all licenses in the Service Subscription terminate on the same date. Backupify reserves the right to monitor usage and retroactively invoice for use and high water marks that was not reflected on invoices covering months of actual use.

f.   Renewals.  Unless timely cancelled by you as described herein, the term of any Service Subscription licenses will automatically renew for the same term (Committed Service Term) for the number of licenses as of the “license count date” immediately preceding the renewal date.  The license count date shall be the date on which Backupify measures the number of licenses in each Service Subscription.  This date will be the same each month but is subject to change at Backupify’s sole discretion.

g.    Cancellations/Adjustments.   You may cancel or adjust the number of licenses in a Service Subscription in the manner described in the Product Specifications, and only in the last month of the Committed Service Term prior to the fifteenth calendar day of that month.

h. Account Termination.  For up to sixty (60) days after the effective date of termination of an Account, we will, upon written request, allow you to export or download a copy of Content as provided in the Product Specifications.  After such period, we have no obligation to maintain or provide any Content and may thereafter delete or destroy all copies of the Content, unless legally prohibited.

i.  License Invoicing and Financial Terms.

I.   An Order for a license is generated when you provision a new license for an Account. An Order for one or more licenses may also be placed with your Backupify sales executive.

II.   Service Subscription fees are invoiced in advance monthly commencing on the first monthly invoice following the provision of the first license in the Service Subscription or acceptance of an Order placed with a sales executive.  Monthly Service Subscription fees are based on the total number of licenses in each Service Subscription as of the license count date from the previous month.

III.   Monthly payments for each Service Subscription are due upon receipt each month and will be charged to the applicable payment method.

IV.   You agree to pay monthly Service Subscription fees for the entire Committed Service Term. Unless otherwise agreed, you may not prepay for a Service Subscription. If you terminate your Service Subscription at any time during a Committed Service Term, a lump sum payment (equal to 100% of the monthly unpaid Service Subscription fee for the number of licenses in a Service Subscription as of termination times the number of months remaining in the Committed Service Term) will be due immediately and charged to your preferred payment method.

V.   Backupify may terminate any Service Subscription at its discretion, effective immediately, for non-payment that is not substantially cured within thirty (30) days after receiving written notice.

3.  ACCESS AND SECURITY

a.  Your Responsibility for Account Access. You are responsible for any action that you permit, assist or facilitate to be taken through your Accounts and associated Content. You are responsible for the security of all access credentials, including all passwords, to all Accounts you manage. You are responsible for maintaining the security of any access codes, passwords, technical specifications, connectivity standards or protocols, assigned to you and/or created by you to gain access to a Backupify Portal, Product and/or Content. You are responsible for all activities that occur in your Account regardless of whether the activities are undertaken by you, by others on your behalf (including any of your Administrators and/or any Users you authorize). Your Product management portal account may be hosted in the U.S. regardless of where you, the Accounts or Content related to them may be located. You are responsible for securing any necessary consents related to the hosting location of your Portal account. You agree to notify us immediately if you learn of any unauthorized use of any access credentials or any other known or suspected breach of security. You agree that we will not be liable for any loss of any kind resulting from a) any entity using your Account access credentials; and b) activity within your Account, either with or without your knowledge or authorization.

b.  Your Responsibility for Security. You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to access to and use of the Product and Content.  In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product that you control, including but not limited to network connectivity and internet connectivity. We use physical, technical and administrative safeguards designed to secure Content under our control against accidental or unauthorized loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities and you use the Products with all Content at your own risk.

 

Exhibit A

Backupify Client Terms

These Client Terms (“Terms”), apply to you as the entity that owns, licenses, or lawfully controls the content (“Content”) in a Backupify product account (“Product”). Backupify does not provide the Product directly to you. The Product is sold and provided by Backupify, Inc. or one of its subsidiaries or affiliates (“Backupify”) directly to the reseller/managed service provider (“Administrator”) who will (a) use and manage the Product on your behalf with your Content; or who may  (b) authorize you to access, use or manage the Product yourself,  in which case you will be considered Client Administrator of the Product.

RIGHTS TO THE PRODUCT

You acknowledge that Backupify and its licensors own all intellectual property rights in and to the Product. You will not engage in or authorize any activity that is inconsistent with such ownership

Backupify’s Use of Content. Backupify will use Content only as necessary to provide and support the Product and will not otherwise access Content other than as permitted herein, as described in the Product Specifications or as authorized by an Administrator for support.

Backupify’s Rights. In the event that Backupify reasonably believes Content or related Product use violates these terms, including any Fair Use policies in the Product Specifications, may disrupt or threaten the operation or security of any computer, network, system or the Product, or may otherwise subject Backupify to liability, Backupify reserves the right to refuse or disable access to the Product or Content. Backupify may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with law or any judicial, regulatory or other governmental order or request. Backupify will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Backupify may restrict access to any Product or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that Backupify takes any such action without prior notice, Backupify will provide notice to the Administrator, unless prohibited by law.

Use of Aggregate Data. Notwithstanding anything else in these Terms or otherwise, Backupify may evaluate and process use of the Product and Content in an aggregate and anonymous manner, meaning in such a way that the individual is not or no longer identified or identifiable and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Aggregate Data includes utilization statistics, reports, and logs aggregated with data from other Backupify customers.  Backupify may use, process and share such Aggregate Data with third parties to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Backupify’s business. Backupify retains all intellectual property rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identifiable information nor identify any Client or individual.

Right to Change Products. Backupify may make changes to its Products through updates and upgrades that offer new features, functionality, and efficiencies (“Enhancements”). Backupify reserves the right to add new Products and Enhancements and to replace or discontinue Products or Enhancements at any time.

Right to Interact with Products. You agree that Backupify may and you hereby authorize Backupify to interact remotely with any deployed Product in order to test, troubleshoot, update, analyze use of or modify the Product or the environment in which it operates.

ADMINISTRATOR

Backupify will interact with the Administrator(s) you appoint to operate and manage use of the Product with your Content. You are not a third-party beneficiary of any agreement between Backupify and an Administrator.

An Administrator is not an agent of Backupify and is not authorized to make any representations or warranties on behalf of Backupify regarding the Product or its use.

You are responsible for instructing and authorizing the Administrator with respect to use of the Product including backup settings, management, retention and deletion of Content, and transition of Product or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, you and/or Backupify.

You expressly agree that Backupify may rely on the instructions and authorization of the Administrator with respect to use and support of the Product and access and control of your Content.

YOUR DIRECT USE OF A PRODUCT

If the Administrator authorizes you to access or use a Product directly, you are responsible for all actions you take with respect to use of the Product including backup settings and management, retention and deletion of Content and Backupify may rely on your instructions as an authorized administrator of the Product.

Any support for the Product is provided to you by the Administrator and not directly by Backupify.

SECURITY

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

You acknowledge and agree that the Administrator you authorize to manage use of the Product on your behalf has access to and manages your Content. You and/or the Administrator are responsible, and in no event will Backupify be responsible, for any physical, administrative, or technical controls related to Products or Content not under the exclusive control of Backupify, including but not limited to , passwords or other access credentials, LAN or internet connectivity. You and/or the Administrator are responsible for the proper configuration and maintenance of security measures and for determining the security measures appropriate for the Content

INDEMNIFICATION

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

LIMITATIONS OF LIABILITY

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

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

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

BACKUPIFY DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF BACKUPIFY.

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

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