Terms and Conditions of Online Backup Service Usage
1. INTRODUCTION
These terms and conditions of use shall constitute the entire agreement between Donkerhoek Data and
the Customer relating to the subject matter hereof.
2. THE SERVICE
Donkerhoek Data will provide the Customer with an online data backup service comprising of a setup on
the Customer’s computer and an online storage platform where the Customer’s data is backed up. (High
data usage is possible, depending on the amount of data synced.)
Donkerhoek Data reserves the right, at any time, to modify or discontinue, temporarily or permanently,
the Service or parts thereof with or without notice.
The ownership and all rights to the software remain in Donkerhoek Data, the customer has the right to
use the software provided the customer has paid the required fees.
3. FEES AND CHARGES
The fees and charges payable by the Customer to Donkerhoek Data for the Service will be determined in
accordance with the schedule of fees and charges/Customer proposal as published from time to time by
Donkerhoek Data.
Donkerhoek Data shall be entitled to alter the fees and charges from time to time.
4. PAYMENT TERMS
The Customer undertakes to effect payment of all amounts due to Donkerhoek Data arising out of this
agreement monthly in advance and without deduction or set-off for whatsoever reason.
The monthly amount payable by the Customer to Donkerhoek Data will be paid by means of stop-order
or direct transfer.
5. TERM
This agreement shall commence on the effective date as defined in point 6 below. Should the Customer
decide to terminate the usage of the service, Donkerhoek Data requires 30 days notice in writing.
6. EFFECTIVE DATE
The effective date shall be the date on which this agreement is signed.
7. OBLIGATIONS OF THE CUSTOMER
The Customer agrees to abide by all applicable local, state, national and international laws and
regulations and is solely responsible for all acts or omissions that occur. By way of example, and not as a
limitation, the Customer agrees not to interfere with or attempt to disrupt the Service or otherwise
disrupt or tamper or attempt to de-compile the binary code of the Service; The Customer warrants that
the contact information in the Schedule of Services/Customer Proposal is true and accurate and
undertakes to inform Donkerhoek Data of any changes thereto as and when they occur.
8. WARRANTIES
The Customer hereby warrants to and in favour of Donkerhoek Data that it will, at all-time whilst using
the Service, act in the utmost good faith; has the necessary legal title, legal capacity and right to utilize
the Service; and will have no action against Donkerhoek Data or its shareholders, directors or employees
arising either directly or indirectly out of the use of the Service resulting from no fault or negligence of
Donkerhoek Data and, to the extent necessary, the Customer hereby waives and abandons such claims.
Donkerhoek Data hereby warrants that it will at all times endeavour to act in accordance with best
practice and in good faith in terms of the storage and management of their customer’s data on their
remote backup servers and networks.
9. DISCLAIMERS / LIMITATION OF LIABILITY
Due to the nature of the service provided, Donkerhoek Data does not represent or warrant, despite its
best efforts, that the Service or the Customer’s use thereof will be uninterrupted or error free, that
defects will be corrected, or that the Service or the server that makes it available are free of viruses or
other harmful components.
Donkerhoek Data Accepts NO responsibility for data loss of any kind where the Customer or one of our
agents assisting the Customer does NOT select the correct data to backup. The Customer is solely and
exclusively responsible for the selection of data to backup and for verifying that the correct data is being
backed up on an on-going basis. It is the clients responsibility to save the data to the online backup
drive. The backup does not automatically save to the online backup drive. Any actions of our agents in
selecting data will be deemed to have been on instruction from the Customer and in providing
assistance to the Customer in setting up a valid back up selection. During the registration process, a
password and encryption key will be allocated to the client account by Donkerhoek Data. The customer
shall keep the password confidential land immediately notify Donkerhoek Data if any unauthorized third
party becomes aware of the password or if the customer becomes aware of any unauthorized use of the
password and breach of security. The customer certifies that any person to whom its password and
encryption key is disclosed is authorized to act as its agent for the purpose of using the service. The
customer is entirely responsible for any loss or damage it may suffer as a result of not maintaining
confidentiality of access to its Donkerhoek Data account. Donkerhoek Data shall not be responsible for
unauthorized access to or alteration of transmissions or data, any material or data sent or received or not sent or received, or any transactions or agreements entered into through the use of the Service.
The Customer specifically agrees that Donkerhoek Data is not responsible for any content or data sent using and/or included in the Service. Donkerhoek Data shall back up and store the data in the condition in
which it is uploaded. For the avoidance of doubt – any data which is incomplete, infected with a virus or
has any other defect, will be encrypted with all defects, compressed and transmitted to the Donkerhoek
Data platform. In the event that data is required to be restored to the client, the data will be restored in
the same condition, i.e. any defective or corrupt data will be restored to the client computer.
Donkerhoek Data and/or its suppliers, shareholders, directors and employees make no representations
about the suitability, reliability, availability, timeliness, security and accuracy of the Service for any
purpose, other than those specified in terms of “The Service” as defined in these Terms and Conditions.
Donkerhoek Data makes no warranties /representations with regards to the fitness for a particular
purpose. Otherwise than provided for in law, in no event shall Donkerhoek Data and/or its suppliers,
shareholders, directors and employees be liable for any direct, indirect, punitive, incidental, special,
consequential damages or any damages whatsoever including, without limitation, damages for loss of
use, data or profits, arising out of or in any way connected with the use or performance of the Service,
with the delay or inability to use the Service, the provision of or failure to provide the Service, whether
based on contract, delict, negligence, strict liability or otherwise, even if Donkerhoek Data have been
advised of the possibility of such damages. The Customer’s sole and exclusive remedy is to discontinue
using the Service as provided for in clause 5 above. Donkerhoek Data and/or its suppliers, shareholders,
directors and employees shall not be liable for any breach of data.
10. INDEMNIFICATION
The Customer agrees to indemnify and hold Donkerhoek Data and its shareholders, directors and
employees harmless from any claim, demand or damage, including reasonable attorneys’ fees, asserted
by any third party due to or arising out of the Customer’s use of the Service.
11. PROPRIETARY RIGHTS TO CONTENT
The Customer acknowledges that the content, including but not limited to text, software, photographs,
graphics, manuals or other material contained or made available to the Customer via the Service is
protected by copyrights, trademarks, patents or other proprietary rights and laws and the Customer
undertakes not to infringe such rights.
12. TERMINATION OF SERVICE
A customer’s material failure to comply with this agreement serves as grounds for Donkerhoek Data to
terminate the service provided to the Customer. Donkerhoek Data may terminate the service provided
to customer within 30 business days’ notice given in writing or any other recorded manner or form.
13. SEVERABILITY
If any of the provisions of this agreement is unenforceable then such unenforceable provision will be
deemed to be severed from this agreement and the remaining provisions of this agreement will continue of full force and effect as between the parties
