Metrofile Cloud Terms & Conditions
- INTRODUCTION
These terms and conditions of use shall constitute the entire agreement between Metrofile Cloud and the Customer relating to the subject matter hereof.
- THE SERVICE
Metrofile Cloud will provide the Customer with a combination of services selected by the client. Available services include:
- An online data backup service comprising of a client program installed on the Customer’s computer / server and an online storage platform where the Customer’s data is backed up to on a scheduled basis
- DraaS (Disaster Recovery as a Service)
- Cloud Hosted Anti- Ransomware and Anti-Virus software licenses
- VOIP (Voice over Internet Protocol) telephony services Metrofile Cloud reserves the right, at any time, to modify or discontinue, temporarily or permanently, specific services or parts thereof with or without notice. The ownership and all rights to the software remain vested in Metrofile Cloud, the customer has the right to use the software provided the customer has paid the required fees.
- Popia Services
- FEES AND CHARGES
The fees and charges payable by the Customer to Metrofile Cloud for the Service will be determined in accordance with the schedule of fees and charges/Customer proposal as published from time to time by Metrofile Cloud.
Metrofile Cloud shall be entitled to alter the fees and charges from time to time.
- PAYMENT PROVISIONS
The Customer undertakes to effect payment of all amounts due to Metrofile Cloud 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 Metrofile Cloud will be paid by means of debit order, stop-order or direct transfer.
- TERM
This agreement shall commence on the effective date as defined in point 6 below.
The service will continue as long as the Customer is paying their Metrofile Cloud monthly fee.
Should the Customer decide to terminate the usage of the service, Metrofile Cloud requires 1 calendar month notice in writing or any other recorded manner or form.
- EFFECTIVE DATE
The effective date shall be the date on which this agreement is signed or the date as stated in the Schedule of Services.
The Service will commence after confirmation of registration, thereafter the service will continue after receipt by facsimile transmission of a signed Schedule of Services/Debit order mandate document.
- 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 Metrofile Cloud of any changes thereto as and when they occur.
- WARRANTIES
The Customer hereby warrants to and in favour of Metrofile Cloud that it –
- Will, at all times 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 Metrofile Cloud or its shareholders, directors or employees arising either directly or indirectly out of the use of the Service and, to the extent necessary, the Customer hereby waives and abandons such claims.
Metrofile Cloud hereby warrants that it will at all times endeavour to act in accordance with best practice and in good faith in terms of the services provided to the client.
- DISCLAIMERS / LIMITATION OF LIABILITY
Due to the nature of the service provided, Metrofile Cloud 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.
Metrofile Cloud 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 back up. 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. 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.
With regards to the online data backup service, during the registration process, a password and encryption key will be automatically allocated to the client account by Metrofile Cloud, alternatively the customer may assign the required password and encryption key. The customer shall keep the password confidential and immediately notify Metrofile Cloud 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 Metrofile Cloud account.
Metrofile Cloud 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 Metrofile Cloud is not responsible for any content or data sent using and/or included in the Service. Metrofile Cloud shall back up and store the data uploaded to the Metrofile Cloud storage platform in the condition in which it is uploaded (encrypted and password protected). 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 Metrofile Cloud 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.
Metrofile Cloud 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.
Metrofile Cloud makes no warranties /representations with regards to the fitness for a particular purpose.
Otherwise than provided for in law, in no event shall Metrofile Cloud 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 Metrofile Cloud 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.
- INDEMNIFICATION
The Customer agrees to indemnify and hold Metrofile Cloud 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.
- 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.
The customer acknowledges that Metrofile Cloud will delete the data from Metrofile Cloud storage servers on the date of termination.
- TERMINATION OF SERVICE
Metrofile Cloud may, at its sole discretion, terminate the Service provided to the Customer, for any reason, including, without limitation, if the Customer has acted inconsistently with the letter or spirit of this agreement.
All paid invoices are considered “final” sales, and will not be refunded.
- 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.
- GENERAL
This agreement shall be governed by and interpreted in accordance with the laws of South Africa.
The Customer agrees that no joint venture, partnership, employment, or agency relationship exists between the Customer and Metrofile Cloud as a result of this agreement or use of the Service.
Metrofile Cloud performance of this agreement is subject to existing laws and legal process and nothing contained in this agreement is in derogation of Metrofile Cloud right to comply with governmental, court and law enforcement requests.
If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the parties with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the parties with respect to the Service.
The Customer hereby appoints as its address the physical address as specified in the “contact details” on the customer’s Metrofile Cloud website as the Customer’s domicilium citandi et executandi for all purposes relating to this agreement.
This agreement may not be ceded by the Customer to any other party.
The clause headings in this agreement are solely used for the convenience of the parties and have no legal or contractual significance.
This agreement constitutes the sole record of the agreement between the parties in relation to the subject matter hereof.
Neither party shall be bound by any representation, warranty, promise or the like not recorded herein.
No addition to, variation, or agreed cancellation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of both parties.
This agreement supersedes all prior agreements, undertaking and arrangements existing between the parties relating to the subject matter hereof.
