TERMS AND CONDITIONS

1. BACKUP SERVICE: Remote Backups Australia agrees to offer to provide an initial full backup of the Subscriber's computer(s) DATA FILES ONLY (no program files) and then provide partial backups of the Subscriber's DATA FILES ONLY (no program files) when initiated by the Subscriber. Remote Backups Australia will store these data files for the Subscriber for at least one (1) year. Upon the request of the Subscriber, Remote Backups Australia will locate and transfer these files to the Subscriber's computer within 48 hours. The Subscriber, at an additional charge may also request emergency service, within 4 hours.

2. TERM OF AGREEMENT: This Agreement shall be the period specified on the Subscription Form - from the date of this Agreement. This Agreement shall be automatically renewable at the option of both parties for periods of the same length - the first such renewal period to commence upon the date of expiration of the initial Agreement, unless either party shall notify the other in writing of the intent to cancel. In the event of renewal, the Subscriber shall pay the same amounts as set forth on the Subscription Form, subject to any increases in rates as specified in Section 6.

3. LIMITATION OF WARRANTY LIABILITY: Remote Backups Australia warrants and represents that the equipment provided will be free from defects in material and workmanship for a period of 90 days after installation. The obligation of Remote Backups Australia under the warranty is limited to the repair or replacement, Remote Backups Australia option, of a non-conforming product, part or component thereof, except consumable accessories, within a reasonable time after notification. The Subscriber's remedies are limited to Remote Backups Australia obligations stated herein, subject to the "EXCLUSIVE REMEDY" set forth in paragraph 4 herein. This warranty extends only to the Subscriber. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS.

Remote Backups Australia has not made and makes no guarantee or warranty, including implied warranty or merchantability or fitness, that the system, equipment, or services supplied will avert, avoid or prevent the loss of data or information or the consequences therefrom, which the system or service is designed to provide. It is mutually understood and agreed that in executing this Agreement, Subscriber is not relying on any advice or advertisement of Remote Backups Australia. Subscriber agrees that any representation, promise, condition, inducement or warranty, express or implied, including those of merchantability and fitness, not included in writing in this Agreement shall not be binding upon any "party." The Subscriber assumes all risk for loss or damage to the Subscriber's equipment and data files except as specified herein.

4. EXCLUSIVE REMEDY: Because of the nature of the services rendered and the system as a whole, it is impractical and extremely difficult to fix the actual damages, if any, which may result from failure on the part of Remote Backups Australia to perform its responsibilities under this contract. Subscriber does not desire this contract to provide full liability for loss, damage or injury due directly or indirectly to occurrences, or consequences therefrom, which the service or system is designed to deter or avert. In the event Remote Backups Australia should be found liable for loss, damage or injury due to a failure of the equipment or services provided under this Agreement or the equipment in any respect, its liability shall be limited to $250.00, as the agreed upon liquidated damages and not as a penalty. Such liquidated damages is the exclusive remedy for any failure of services or equipment, and the provisions of this paragraph shall apply if loss, damage or injury, irrespective of cause or origin, results directly or indirectly to a person or property from the performance or nonperformance of any obligation of Remote Backups Australia from negligence, active or otherwise, of Remote Backups Australia, its agents or employees. It is intended and expressly agreed that the purpose of the preceding provisions are to set an upper limit to the amount recoverable by Subscriber and to fix liability of Remote Backups Australia at a specific sum of $250.00. If Subscriber desires additional liability coverage, it shall be his/her responsibility to secure it from an insurance carrier or other agency of his/her choice, at his/her own expense. Subscriber shall bring no suit against Remote Backups Australia more than one (1) year after the accrual of the cause of action therefore.

5. ALTERATIONS TO EQUIPMENT: The Subscriber agrees not to tamper with, alter, adjust, add to, disturb, move, remove or otherwise interfere with the systems described herein, nor permit the same to be done by others. If there is a breach of the foregoing obligation, Subscriber will provide Remote Backups Australia an additional amount for any repairs that are necessary to maintain the integrity of the system. Subscriber hereby authorizes and empowers Remote Backups Australia, its agents or employees, to make any changes in, or alterations to, the equipment at the request of the Subscriber at an additional expense to the Subscriber.

6. INCREASES IN SERVICE FEES: Notwithstanding the terms and conditions set forth herein, after the expiration of the initial term of this Agreement, Remote Backups Australia may, at any time, increase the fees and charges upon giving the Subscriber notice in writing. In the event that Subscriber shall be unwilling to pay the increased monthly charge, the Subscriber may terminate this Agreement upon giving notice in writing to Remote Backups Australia. Failure to do so will constitute Subscriber's consent to the increase and all other terms and conditions of the Agreement shall remain in full force and effect.

7. COMMUNICATIONS CIRCUITS: Subscriber is responsible for the cost and maintenance of all telephone or other communication circuits required for dutiful transmission and system access. All data files are transmitted over communication company circuits, which are wholly beyond the control and jurisdiction Remote Backups Australia and are maintained by the Communications Company. If these communication circuits are not functional for any reason, the data files may not accurately or completely backup. Remote Backups Australia cannot be held responsible for the continued operation or functioning of these communication circuits nor the reliability of the data files being received over them.

8. DEFAULT AND TERMINATION: This Agreement may be terminated by either party for breach of contract of the other party, provided written notice of such breach is given and such breach is not cured within thirty (30) days of receipt of such notice. Upon the curing of such breach of contract, the party claiming such breach shall give written notice that the breach has been cured and that the Agreement continues in full force and duration. This Agreement may also be terminated upon notice by Remote Backups Australia, in the event that Remote Backups Australia's computer equipment, communication circuits, or other equipment are destroyed by fire, other catastrophe, or by any other means or is so substantially damaged that it is impractical to continue the service to the Subscriber. This Agreement may also be suspended upon written notice of the Subscriber that the system of the Subscriber has been destroyed or damaged by fire or other catastrophe and that the system must be replaced or repaired. The Agreement shall resume upon repair or replacement of the Subscriber's system.

9. WARRANTY OF SUBSCRIBER: The individual signing this Agreement for the Subscriber warrants that he has the authority to sign this Agreement and permit the installation of equipment and systems described herein, as well as the authority to contract for the services provided herein.

10. COMPLETE AGREEMENT: This document, with specified addenda, is a complete agreement. Any representation, promise, condition, inducement or warranty, express or implied, verbal or written, unless expressed in writing in this Agreement or any Addendum thereto, shall not bind either party and the terms and conditions hereof apply as printed without alteration or qualification except as specifically endorsed thereon in writing. A judicial determination nullifying any clause or condition herein shall not be deemed to nullify the balance of this Agreement, which shall remain in full force and effect.

11. PASSWORD SECURITY: It is the FULL responsibility of the SUBSCRIBER to write down the password that the Subscriber chose during initial installation of service. Remote Backups Australia will not be held responsible of loss of password and does NOT maintain Subscriber passwords. The Subscriber understands that without the password, the encrypted stored data can not be retrieved and shall not hold Remote Backups Australia responsible in any way for any losses of any kind whatsoever.

12. PAYMENT: You as the Subscriber acknowledge that payment is required to Remote Backups Australia prior to service/product delivery, either monthly or annually in advance. If a credit account is approved, invoices issued by Remote Backups Australia will be payable within 14 days (and still in advance of service delivery). Should payment NOT be so received or you breach any other obligation to us, we reserve the right to suspend/cancel your service without notice.

13. SERVICE: Our service will only be used by you and not any third party.

14. PLAN CHANGES: You will advise the need for any changes to your plan, including cancellation, to us in writing.

15. OFFENSIVE MATERIAL: You will not store or transmit any unlawful, threatening, defamatory, offensive or pornographic material that constitutes a criminal offence or other unlawful act under any laws.

16. SUBSCRIBER DETAILS: You will securely store your service and access details and will not knowingly allow your service and access details, specifically your security code, to be viewed or retrieved by any unauthorised third parties.

17. SOFTWARE LICENSE: Our software is licensed to you for your use only and must not be used by any third party. This is a non-exclusive licence for as long as you have an active account with us. On cessation, you must remove the software from your systems.

18. SECURITY BREACHES: You will notify us immediately of a breach of security of your service, access or security code, or change of billing or contact details.

19. SUBSCRIBER RESPONSIBILITIES: You as the Subscriber accept that you are solely responsible for the following:

1. The selection of and inclusion of file data into backup sets for submission to our servers
2 . The scheduling of backup operations
3 . Ensuring that successful backup has occurred
4 . Periodically ensuring that file data can be restored from our servers; and
5 . Any costs payable to any other third party, including your Internet Service Provider and I.T. consultant, that result from the use of our service.

20. OUR LIABILITY: You agree that to the extent permitted by law, our liability is limited to the resupply of services you have ordered and paid for in full. You agree to indemnify us (our directors, employees and officers) against any cost incurred or damage or loss suffered as a result of any breach of any obligation you owe us.

EXCLUSIONS:

1. We do not warrant that our service is suitable for use by unqualified computer users under all circumstances. Your computer system may include certain complexities that require input from a qualified I.T. consultant.
2. We do not warrant that all types of data are suitable for storage on our servers.
3. We do not warrant that our servers will be available at all times. Our target availability is 99%.
4. We do not warrant that our servers are free from unauthorized physical or remote access.
5. We do not warrant that data stored on our servers is secure against all possible forms of intrusion or abuse.
6. We do not warrant that data stored on our servers is secure against loss or corruption under all circumstances.
7. We do not warrant that our software will operate correctly on all computer systems.
8. We do not scan your uploaded data for viruses or other threats.
9. We do not warrant that a recovery DVD will be made available to you in any particular timeframe.
10. We are not liable for delays, interruptions, computer viruses or communication line failures; or damage or unauthorised access to your computer system or network.

CHANGES:

1. We reserve the right to make changes to these Terms and Conditions. Changes will be notified to you and will become effective immediately.
2. Variation of these Terms and Conditions for individual Subscribers may be made by us in our discretion but must be in writing and specially say that it varies these Terms and Conditions.

DEFINITIONS:

1. “Agreed Storage Quota” means the storage quota on the backup plan you have subscribed for and we have agreed to provide.
2. “You” means you our Subscriber and your executors, administrators, successors and permitted assigns (and if more than one person or entity each of you jointly and severally).
3. “We/our/us” mean Totsol Pty Ltd ACN 070 905 538 T/A Remote Backups Australia and its administrators and assigns.

GENERAL:

1. These Terms and Conditions shall be governed by the laws in the State of Western Australia and the parties agree to submit to the non-exclusive jurisdiction of the courts in that State.
2. Dollars are Australian dollars.
3. If any provision or part of a provision of these Terms and Conditions is invalid or otherwise unenforceable it may be severed with the fullest meaning possible to be given to the remainder.
4. We may assign our rights and obligations under our agreement with you by notice in writing to you.
5 . Notices may be given by email, fax, mail or delivery. The addresses for the Subscriber shall be taken to be those advised to us at the point of subscription or as notified to us in writing (specifically requesting that our records be updated with the changed details).
6. Non-enforcement or any right or remedy does not amount to a waiver or prevent us from insisting on strict performance.