Terms & conditions
BT PC Backup
1. INTERPRETATION
In this Contract:
"BT" means British Telecommunications plc of 81 Newgate Street, London EC1A 7AJ, registered in England No. 1800000.
"BT Group Company" means a BT subsidiary or holding company including without limitation a holding company of BT, or a subsidiary of any such holding company, all as defined by Section 736 of the Companies Act 1985, as amended by the Companies Act 1989.
"Backup" means the process of transferring Data from a personal or laptop computer to a server for storage.
"Contract" means, in order of precedence, these Conditions, the Service Schedule and the Order Form.
"Customer" means the person named on the Order Form. BT may accept instructions from another person who BT reasonably believes is acting with the Customer's authority or knowledge.
"Data" means any programmes, data or other information copied, or to be copied from a personal or laptop computer for storage during Backup.
"End User Licence" means a licence from Netstore (UK) Limited to a user which permits use of one copy of the Software by such user for its own use and for
archival or back-up purposes but no other purpose.
"Minimum Period" means the first 12 months of the Service beginning on the Operational Service Date.
"Order Form" means the online order form which the Customer completes as part of the online logon process.
"Service" means the on-line Data storage service as described in the Service Schedule, registered and marketed under the name of Backup.
"Software" means the Netstore (UK) Limited software which the Customer is provided access to by BT to enable the Customer to use the Service.
2. DURATION OF THIS CONTRACT
This Contract begins on submission of the completed Order Form for the Service and will continue until terminated in accordance with the Conditions of this Contract.
3. PROVISION OF THE SERVICE
3.1 BT will provide the Service to the Customer in accordance with these Conditions.
3.2 BT will use reasonable endeavours to provide the Service by the date agreed with the Customer, but all dates are estimates and BT has no liability for any failure to meet any date, unless the Service Schedule says otherwise.
3.3 BT will provide the Service with reasonable skill and care.
3.4 BT will use reasonable endeavours to provide uninterrupted Service but faults may occur from time to time. BT will repair in accordance with the fault repair service described in the Service Schedule.
3.5 BT does not warrant that the Software is free from errors or omissions or that the Service is fault free. BT will at its option either repair or replace the Software within a reasonable time if it significantly impairs the Service.
3.6 Occasionally BT may temporarily suspend the Service because of an emergency or for operational reasons, maintenance or improvements. Service will be restored as soon as possible.
3.7 Before suspending the Service BT will give the Customer as much notice as possible.
4. USE OF THE SERVICE
4.1 The Customer is responsible for obtaining suitable computer hardware, software (with the exception of the initial issue of the Software) and telecommunication equipment and services necessary to access and use the Service.
4.2 The Customer must ensure that any equipment connected to or used with the Service is connected and used in accordance with any applicable instructions, safety and security procedures.
4.3 The Service must not be used in any way that:
a) does not comply with the terms of any legislation or any licence applicable to the Customer; or
b) that is in any way unlawful; or
c) does not comply with any instructions given under paragraphs 4.2 and 4.7.
4.4 This Service is provided solely for the Customer's own use and the Customer will not resell the Service (or any part or facility of it) to any third party.
4.5 The Customer will comply at all times with the Data Protection Act 1998 (or any other applicable data protection legislation).
4.6 The Customer will take all reasonable steps to ensure that any person who may have access to the Service complies with the conditions of this Contract.
4.7 The Customer will comply with all reasonable instructions which BT may give from time to time regarding the use of the Service.
4.8 The Customer must indemnify BT against any claims or legal proceedings which are brought or threatened against BT by a third party for breach of the End User Licence.
4.9 BT will notify the Customer of any such claims or proceedings and keep the Customer informed as to the progress of such claims or proceedings.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 The Customer will not, without BT's prior written consent, copy the End User Licence or decompile or modify the Software, nor copy the manuals or documentation except as permitted by law.
5.2 The Customer will effect and maintain adequate security measures to safeguard the Software from access or use by any unauthorised person.
5.3 Before using the Service or the Software the Customer will sign or otherwise accept the terms of the End User Licence to protect the licensor's interest in that Software.
5.4 The Customer will comply with the terms of the End User Licence at all times.
6. INTELLECTUAL PROPERTY RIGHT INDEMNITIES
6.1 BT will indemnify the Customer against all claims and proceedings arising from infringement of any intellectual property rights by reason of BT's provision of the Service to the Customer. As a condition of this indemnity the Customer must:
(a) notify BT promptly in writing of any allegation of infringement;
(b) make no admission relating to the infringement;
(c) allow BT to conduct all negotiations and proceedings and give BT all reasonable assistance in doing so (BT will pay the Customer's reasonable expenses for such assistance); and
(d) allow BT to modify the Service, or any item provided as part of the Service, so as to avoid the infringement, provided that the modification does not materially affect the performance of the Service.
6.2 The indemnity in paragraph 6.1 does not apply to infringements caused by the use of the Service in conjunction with other equipment, software or services not supplied by BT or to infringements caused by designs or specifications made by, or on behalf of, the Customer. The Customer will indemnify BT against all claims, proceedings and expenses arising from such infringements.
6.3 The limitations and exclusions of liability contained in paragraph 9 do not apply to this paragraph.
7. CONFIDENTIALITY
7.1 The parties will keep in confidence any information (whether written or oral) of a confidential nature (including software and manuals) obtained under this Contract and will not, without the written consent of the other party, disclose that information to any person (other than their employees or professional advisers, or in the case of BT the employees of a BT Group Company or their suppliers, who need to know the information).
7.2 This paragraph 7 will not apply to:
(a) any information which has been published other than through a breach of this
Contract;
(b) information lawfully in the possession of the recipient before the disclosure under this Contract took place;
(c) information obtained from a third party who is free to disclose it; and
(d) information which a party is requested to disclose and, if it did not, could be required to do so by law.
7.3 This paragraph 7 will remain in effect for 2 years after the termination of this Contract.
8. CHARGES AND PAYMENT
8.1 The charges for the Service will be calculated in accordance with the charges set out on the BT Business Broadband website http://www.btbroadbandoffice.com/internetapplications/pcbackup and will commence from the date of completion of the Order Form for the Service.
8.2 The charges for the Service are payable on demand. BT may charge daily interest on late payments at a rate equal to 4% per annum above the base lending rate of HSBC Bank plc.
8.3 All invoices will be invoiced and paid in pounds sterling unless stated on the website detailed in 8.1. Value Added Tax or any other applicable in country sales, use tax or like charge in a country where the Service is provided, which is payable by the Customer will be added to BT's invoices as appropriate.
8.4 BT may, at any time, require the Customer to pay a deposit or provide a guarantee as security for payment of future bills.
9. LIMITATION OF LIABILITY
9.1 BT accepts unlimited liability for death or personal injury resulting from its negligence. Paragraphs 9.2 and 9.3 do not apply to such liability.
9.2 BT is not liable to the Customer, either in contract, tort (including negligence) or otherwise for any direct or indirect loss of profits, loss of revenue, business, goodwill, contracts or anticipated savings, nor for any special, indirect or consequential loss or damage or for any destruction, damage of data or corruption to data (including delay in retrieving any stored data), whether sustained by the Customer or any other person.
9.3 BT's liability to the Customer in contract law or in tort or otherwise (including liability for negligence) arising in relation to this Contract is limited to £10,000 for any one incident or series of incidents and £20,000 for any series of incidents related or unrelated in any period of 12 months.
9.4 Each provision of this Contract, excluding or limiting liability, operates separately. If any part is held by a court to be unreasonable or inapplicable, the other parts will continue to apply.
10. MATTERS BEYOND THE REASONABLE CONTROL OF EITHER PARTY
10.1 If either party is unable to perform any obligation under this Contract because of a matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes or acts of local or central Government or other competent authorities or events beyond the reasonable control of that party's suppliers, that party will have no liability to the other for that failure to perform.
10.2 In the event of the imposition of restrictions of a legal or regulatory nature which prevent BT from supplying the Service then BT will have no liability to the Customer for failure to supply the Service.
10.3 If any of the events detailed in paragraphs 10.1 or 10.2 continue for more than 1 month either party may serve notice on the other terminating this Contract.
11. TERMINATION OF THIS CONTRACT BY NOTICE
11.1 Either party may terminate this Contract on 1 months notice to the other.
11.2 If the Customer terminates this Contract during the Minimum Period other than under paragraph 10.3 or because BT has increased the charges or has materially changed the Conditions of this Contract under paragraph 14 to the Customer's detriment, the Customer must pay BT termination charges equal to the charges due in respect of the remaining period of the Minimum Period.
11.3 This Contract shall terminate automatically on termination of the End User Licence for any reason.
12. CONSEQUENCES OF TERMINATION
12.1 Following termination of this Contract for whatever reason:
(a) the Customer will immediately destroy the Software and manuals together with all copies in any form, including copies on any hard and backup disks; and
(b) immediately discontinue any use of the Software or documentation supplied as part of this Contract.
12.2 Upon termination of this Contract all backed up files will be permanently deleted after 60 days. BT will have the right to delete any stored Data without any liability for loss or damage.
13. BREACHES OF THIS CONTRACT
13.1 Either party may terminate this Contract immediately on notice, if the other:
(a) commits a material breach of this Contract, which is capable of remedy, and fails to remedy the breach within a reasonable time of a written notice to do so; or
(b) commits a material breach of this Contract which cannot be remedied; or
(c) is repeatedly in breach of this Contract ; or is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of their creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation or a receiver or administrator is appointed over their assets.
13.2 If BT is entitled to terminate this Contract under paragraph 13.1, BT may, on giving prior notice where practicable, suspend the Service without prejudice to such rights. Where the Service is suspended under this paragraph the Customer must pay the charges for the Service until this Contract is terminated.
13.3 If this Contract is terminated by BT during the Minimum Period because of an event specified in paragraph 13.1 the Customer must pay BT, without prejudice to any other rights BT may have, the termination charges specified in paragraph 11.
13.4 If either party delays in acting upon a breach of this Contract that delay will not be regarded as a waiver of that breach. If either party waives a breach of this Contract that waiver is limited to that particular breach.
14. CHANGES TO THIS CONTRACT
BT can change the Conditions of this Contract and the charges for the Service at any time. BT will give the Customer 28 days notice of the changes by publishing details on BT's website http://www.btbroadbandoffice.com/internetapplications/pcbackup.
15. TRANSFER OF RIGHTS AND OBLIGATIONS
Neither party may transfer any of its rights or obligations under this Contract, without the written consent of the other, except that BT may transfer its rights or obligations (or both) to a BT Group Company without consent.
16. ENTIRE AGREEMENT
16.1 This Contract contains the whole agreement between the parties and supersedes all previous written or oral agreements relating to its subject matter.
16.2 The parties acknowledge and agree that they have not been induced to enter into this Contract by any representation, warranty or other assurance not expressly incorporated into it; and in connection with this Contract their only rights and remedies in relation to any representation, warranty or other assurance are for breach of this Contract and that all other rights and remedies are excluded.
16.3 The provisions of paragraphs 16.1 and 16.2 shall not affect the parties rights or remedies in relation to any fraud or fraudulent misrepresentation.
16.4 A person who is not party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17. NOTICES
17.1 Notices given by the Customer to BT under this Contract must be in writing and delivered by e-mail to the following address: bt.datasure@bt.com.
17.2 Notices given by BT to the Customer under this Contract must, except for notices given under paragraph 3.7, be in writing and may be delivered by email to the email address provided by the Customer upon purchase of the Service, by hand, by courier, or sent by first class post to the Customer at the address to which the Customer asks BT to send invoices.
18. SEVERABILITY
If any provision of this Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of its provisions will continue in full force and effect as if this Contract had been executed with the invalid, illegal or unenforceable provision omitted.
19. LAW AND JURISDICTION
This Contract is governed by the law of England and Wales and both parties submit to the exclusive jurisdiction of the English courts.
SERVICE SCHEDULE
1. BT PC BACKUP SERVICE DESCRIPTION
The Service comprises an on-line back-up, retrieval and restoration service for data held on personal and laptop computers as described in 1.1, together with a support service described in 1.2. The back-up, retrieval and restoration service is provided through secure, fast transmission over the internet to remote data centres which can be accessed by the Customer's users at any time and from any location.
1.1 Back-up, Retrieval and Restoration Service
The Customer, having downloaded the Software, is able to schedule automated Backups as well as performing manual backups, restorations and retrievals as follows (references to primary and secondary serves are used for illustrative purposes only):
(a) Data to be backed up by the Software is selected by the Customer.
(b) A back-up event is triggered by the Software either manually or automatically. Such an event may be the elapse of a period of time since the last back-up or shutdown of the personal or laptop computer.
(c) The Software initiates a connection to the Customer's Internet Service Provider.
(d) The Data is compressed, encrypted and uploaded to a hard disk on a primary server located at a remote data centre, the Data travelling through the internet, across BT or a third party's leased lines, and through the router and firewall at the data centre .
(e) On receipt of the Data at the primary server, the user receives a confirmation message.
(f) If the primary server becomes unavailable at any point during the transmission, the transmission will restart and the Data will be sent to a secondary server.
(g) Ten prior copies of backed up Data are held, allowing the restoration of up to ten previous versions.
(h) The restoration process works in a similar manner, allowing the Customer to select the versions he/she wishes to restore and enabling retrieval of those files. It is also possible for the Customer to restore sets of Data from specific dates.
(i) Server Based File Retention Policies - Data shall be retained in accordance with the following policy:
- Cancelled Accounts - 60 Days
- Deleted Files - 180 Days
- Excluded Files - 30 Days
- Current Version of files - Always
1.2 Support Service
1.2.1 Technical Support Helpdesk
BT will provide a Technical Support Helpdesk (Helpdesk) which will be available during the hours of 09:00 to 17:00 (Working Hours), Monday to Friday excluding UK public holidays (Working Day). The Helpdesk will be responsible for receiving calls from the Customer reporting faults, and for responding to queries about the Service, for logging such calls and pursuing them to resolution, and reporting back to the Customer.
The telephone and e-mail contact details for the Helpdesk can be found here.
1.2.2 Fault Repair
(a) The Customer must report faults in the Service by contacting the Helpdesk on the telephone number set out in 1.2.1, or such other number as BT may notify to the Customer.
(b) A fault reported:
(i) before the start of Working Hours on any Working Day will be treated as having been received at the start of Working Hours for that Working Day;
(ii) after Working Hours on any Working Day will be treated as having been received at the start of Working Hours on the next Working Day.
(c) Following receipt of a fault report, BT will respond by:
(i) providing advice by telephone, including where appropriate advice as to tests and checks to be carried out by the Customer;
(ii) where possible, carrying out diagnostic checks from BT premises; and
(iii) where considered necessary, escalation to BT's supplier for 3rd line escalation and fault resolution.
(d) BT will aim to respond to a fault report, where it is received before 17:00hours on one Working Day, by the end of the next Working Day. Work will only be carried out during Working Hours.
2. WHAT THE FAULT REPAIR SERVICE DOES NOT COVER
2.1 The fault repair service does not cover:
(a) maintenance of hardware or software purchased from other vendors;
(b) loss of Customer generated software programmes;
(c) work at the Customers request outside the applicable Working Hours; or
(d) faults reported by the Customer which are not covered by this Contract.
3. CUSTOMER'S OBLIGATIONS
3.1 The Customer agrees to co-operate in diagnosing faults by carrying out any diagnostic and test routines requested by BT or included in the manufacturer's instructions, and allowing BT to carry out remote diagnostic tests, where appropriate.