DATABARRACKS SERVICES AGREEMENT FOR THE
SUPPLY OF DATA STORAGE
0.1 Databarracks: Databarracks Limited is a company registered in
Guernsey under Reg # 40662 whose registered office is at Adolphus
House, Fort George, St Peter Port, Guernsey, Channel Islands, GY1
0.2 The Correspondence: Adrress: Arxcis House, 9 Park Hill, SW4
0.3 The Services: Data backup and storage
0.4 The Fees: The fees determined in accordance with this
0.5 You: The person obtaining the Services from Databarracks under
0.6 Notice Period: 30 days
0.7 Storage Band: The average monthly storage data amount stored
on Databarracks servers
0.8 The Data: The digital information transmitted by you to
Databarracks through the use of the Software to be stored on
0.9 Data Controller: As defined in the Data Protection Act
0.10 Data Processor: As defined in the Data Protection Act
0.11 Encryption Key: The encryption key is a
mandatory key created You on the installation of the Arxcis
software. The encryption key is stored in the Ds-Client Database in
encrypted form, so even a person with full access to the Ds-Client
computer cannot find out the values of the encryption key.
Databarracks do not have access to your encryption key and restores
cannot be performed without it.
0.12 Password: The password as created on
software installation. Password is only known by You, and data can
only be decrypted with the use of the password by the account
holder. Databarracks do not have access to your password and cannot
assist in the restoration of your data in case of password is
0.13 Public Key: The published part of an
asymmetric encryption key pair which a person intends third parties
to use to encrypt data for the benefit of the person generating the
key and which can only be decrypted by the use of the corresponding
private key which is kept secure by the key generator
0.11 The Software: The Databarracks client software as updated by
Databarracks from time to time
0.12 Usage Fee: is defined in clause 4
1. PROVISION OF SERVICES
1.1 In consideration of your payment of the Fee Databarracks
agrees to supply you with the Services on the terms and subject to
the conditions set out in this Agreement.
1.2 You acknowledge that you are responsible for providing (and
paying for) your own internet access facilities through your ISP or
1.3 Databarracks agrees to provide technical support upon
2.1 Subject to earlier termination in accordance with this
Agreement, this Agreement will continue unless terminated earlier
and not less than the Notice Period from one party to the
3. PAYMENT OF FEES
3.1 You agree to pay the Usage Fees (as set out in clause 4) as
they become due.
3.2 All fees are payable within 30 days of invoice date. You
hereby authorise us to use the credit card/debit card entered when
you signed up (or as updated) or any direct debit set up with us to
pay the Fees and other charges under this agreement as they become
due. Where any of your credit/debit card or direct debit payments
is refused or reverse charged (other than through the default of
Databarracks) Databarracks reserves the right to charge an
administration fee of £20 on each and every occasion where this
occurs to cover Databarracks's time and expense. You undertake to
inform Databarracks each time your credit/debit card or bank
3.3 Databarracks reserves the right to charge interest on all late
payments at the rate prescribed by Late Payment of Commercial Debts
(Interest) Act 1998, whether or not such act applies to the debt in
4. USAGE FEES
4.1 Usage Fees are calculated on the basis of the average amount
of data held on the Databarracks servers after compression rounded
up to the nearest megabyte.
4.2 A quota limit can be applied to backup
storage upon request. Once quota limit is reached, any new or
updated data will not be uploaded to our servers. You are
responsible for managing your account quota limit and to notify
Databarracks technical team once quota limit needs to be
4.2 If you exceed your Storage Band we will automatically upgrade
you to the next Storage Band and charge you pro rata in advance for
such Storage Band for the remainder of the Term.
5. AVAILABILITY and SERVICE LEVELS
5.1 Databarracks does not undertake to provide the Services
24/7/365 but shall use reasonable commercial endeavours to make the
5.2 Subject always to its obligation to provide the Services with
reasonable skill and care, Databarracks shall not be liable for
failure to provide the Services.
6. ACCEPTABLE USE POLICY
6.1 You undertake not to use the Services to store or transmit any
data which are obscene, illegal, defamatory or which breach the
rights of any third party and to fully and effectively indemnify
Databarracks against any cost, claim or expense arising from any
breach or suspected breach of such undertaking.
7. OWNERSHIP OF DATA
7.1 You acknowledge and confirm that you own or are licensed and
are permitted to transmit to Databarracks all Data without breach
of any law, agreement, arrangement or duty or the rights of any
7.2 You acknowledge that Databarracks has no effective access to
the content of Data transmitted to Databarracks using the Services
as all Data is encrypted prior to transmission to Databarracks
using an algorithm which Databarracks has no practical means of
reversing in the absence of a password.
7.3 You undertake never to transfer to Databarracks in whatever
form (including but not limited to written or spoken) and for
whatever reason any encryption key (except a Public Key),
decryption key, password or other access token except only where
such encryption key, decryption key or password is itself encrypted
as part of the Data in a way which prevents Databarracks from
7.4 In no circumstances will Databarracks attempt any processing
of any Data supplied to Databarracks under this Agreement other
than storage and retrieval of encrypted data blocks.
7.5 So far as Databarracks is aware of the current state of the
art, loss of your password or encryption key will result in
irretrievable loss of Data and no practical means exists of
recovering such Data.
7.6 Databarracks will never attempt to assist the recovery of any
Data where loss is caused by the loss of or corruption to any
8. DATA PROTECTION
8.1 Databarracks stores the Data within the United Kingdom, but is
not a Data Controller in relation to such Data as it has no access
to nor ability to process such Data (whether pursuant to your
instructions or otherwise) other to obtain or release such Data
pursuant to instructions directed directly at the Databarracks
servers by you.
8.2 Databarracks refuses to process or attempt to process any Data
other than in accordance with clause 8.1 above.
8.3 You acknowledge that as holder of the decryption keys
associated with the Data the security of the Data is entirely
within your control. Databarracks will use all reasonable
endeavours not to permit anyone who does not have the appropriate
access keys to have access to the Data (and then only in encrypted
form) and you acknowledge and confirm that this satisfies the
requirements of the seventh Data Protection Principle
9. USE OF SERVICE
9.1 You undertake to use the Services only for yourself and not
for any third party and not to resell or attempt to resell
9.2 You undertake to use the Services and to access the
Databarracks equipment solely through use of the Software as
supplied to you and unmodified and you acknowledge and confirm that
any other use of Databarracks equipment is UNAUTHORISED AND MAY
THEREFORE AMOUNT TO AN OFFENCE UNDER THE PROVISIONS OF THE COMPUTER
MISUSE ACT, and you will not assist or any permit any other person
so to access the Databarracks equipment.
10. USE and UPDATING SOFTWARE
10.1 An engineer from Databarracks will be responsible for
installing the software on your equipment unless agreed otherwise
by both parties.
10.2 You undertake to update the Software promptly on notification
by us as subsequent versions are released.
10.3 You acknowledge that the Software's feature set may vary from
release to release.
10.4 Databarracks accepts no liability for any failure in the
10.4.1 you attempt to access them with a version of the Software
which is not current;
10.4.2 the Software fails owing to:
10.4.2.1 your failure to follow instructions correctly;
10.4.2.2 failure of the Software to interoperate with other
software (including firmware);
10.4.2.3 hardware malfunctions;
10.4.3 there is any corruption or failure of encryption or
10.4.4 the loss or corruption of any password or other
10.4.5 loss of or corruption of data caused while the data is in
transit to or from the Databarracks storage facility;
10.4.6 you are frozen out of access to the Services owing to a
denial of service attack.
11. LICENCE TO SOFTWARE
11.1 For such period as Databarracks is contracted to provide the
Services, the Software is licensed to you pursuant to the End User
Licence Agreement which is provided by the software manufacturer
upon installation. The above mentioned Agreement may be amended
from time to time.
11.2 The End User Licence Agreement is incorporated into this
11.3 The licence referred to in Clause 11.1 above extends to any
amendments, modifications bug fixes or version releases that may be
issued from time to time.
12. SUSPENSION OF SERVICES
12.1 Without prejudice to any other remedy it may Databarracks is
permitted to suspend the services
12.1.1 if you are in breach of any term of this Agreement
(including the End User Licence Agreement);
12.1.2 if you owe any money to Databarracks (whether under this
Agreement or otherwise) and such sums are due and payable;
12.1.3 where Databarracks reasonably suspects that you are in
breach of any term of this Agreement or reasonably anticipates that
you will be;
12.1.4 where Databarracks reasonably suspects that the security of
its systems is or is about to be compromised
12.2 Should Databarracks revoke such suspension, it does not
guarantee the retention or integrity of any data stored pursuant to
the Services while such suspension is in place.
12.3 Your licence to use the Software is suspended for such time
as the Services are suspended pursuant to clause 12.1 above.
12.4 Fees continue to accrue and be payable at any time while the
Services are suspended pursuant to clause 12.1 above.
13.1 Either party shall be permitted to terminate this Agreement
on notice to the other if the other is in material breach of this
Agreement and (where the breach is capable of remedy) has failed to
remedy the breach within 30 days of receiving notice of the
13.2 Databarracks shall be entitled forthwith to terminate this
Agreement by written notice to you if you become bankrupt.
13.3 Any waiver by either party of a breach of any provision of
this Agreement shall not be considered as a waiver of any
subsequent breach of the same or any other provision thereof.
13.4 The rights to terminate this Agreement given by this clause
shall be without prejudice to any other right or remedy of either
party in respect of the breach concerned (if any) or any other
14. EFFECT OF TERMINATION
14.1 On termination of this Agreement however caused,
Databarracks' obligation to retain any Data ceases, and
Databarracks shall be permitted to delete any Data held on its
15. REFERENCES TO LEGISLATION
Any reference to a statutory provision shall include that
provision as from time to time modified or re-enacted provided that
in the case of modifications or re-enactments made after the date
of this Agreement the same shall not have effected a substantive
change to that provision.
16. SINGULAR AND PLURAL AND GENDER
The singular includes the plural and vice versa and any gender
includes any other gender.
The headings of this Agreement are for ease of reference only and
shall not be taken into account in the construction or
interpretation of any provision to which they refer.
18. FORCE MAJEURE
18.1 Databarracks shall not be liable for delay in performing or
failure to perform obligations under this Agreement if the delay or
failure results from force majeure.
18.2 For the purposes of this Agreement "force majeure" shall mean
any Act of God war riot act of terrorism outbreak of hostilities
strike or other industrial action of any kind malicious damage
default of suppliers or sub-contractors accident failure or
breakdown of plant or machinery fire flood explosion any act of
local or national government or authority and any cause or
circumstance whatsoever outside the reasonable control of the
18.3 In the event of any delay or failure under this Agreement
resulting from force majeure a Party may rely on the provisions of
this clause for exemption from liability for non-performance part
performance defective performance or delay and in the event that
any such delay or failure continues for a period in excess of 30
consecutive days a Party shall have the right to terminate this
Agreement with immediate effect.
18.4 In the event of any force majeure (including a sequence of
events of force majeure) which has lasted or is likely to last for
longer than 14 days the Parties agree to discuss in good faith
whether the respective rights and obligations of each Party under
this Agreement can be amended in order to alleviate the effects of
the force majeure and best bring into effect the original
intentions of the Parties.
This Agreement may be modified or amended from time to time by the
mutual agreement of the Parties provided however that no such
modification or amendment shall be effective until reduced to
writing signed by the Parties
20. SUCCESSORS AND ASSIGNS
References in this Agreement to the Parties shall include their
respective heirs successors in title permitted assigns and personal
21. WAIVER AND FORBEARANCE
If any Party fails to rely on its rights under this agreement or
otherwise, that shall not prevent it from relying on those (or
similar) rights in the future.
22. CUMULATIVE REMEDIES
22.1 The provisions of this Agreement, and the rights and remedies
of the Parties under it are cumulative and are without prejudice
and in addition to any rights or remedies a Party may have at law
or in equity.
22.2 No exercise by a Party of any one right or remedy under this
Agreement, or at law or in equity, shall (save to the extent, if
any, provided expressly in this Agreement, or at law or in equity)
operate so as to hinder or prevent the exercise by it of any other
such right or remedy.
Subject to Clause 24 below, Databarracks expressly warrants that
it will carry out the Services with reasonable skill and
24.1 Except as expressly stated in this Agreement, Databarracks
shall have no liability to you for any loss or damage whatsoever
arising out of or in connection with this Agreement or the supply
of Services hereunder whether arising in contract, tort (including
negligence and breach of statutory duty) or otherwise. Subject to
Clause 24.3 below Databarracks's total aggregate liability to you
in connection with this Agreement other than its liability under
Clause 0.1 in any one calendar year shall not exceed 125% of the
amount received by Databarracks (excluding VAT) from you under this
Agreement in such calendar year.
24.2 Neither Party shall, in any event, be liable or responsible
to the other for any indirect, incidental, special or consequential
loss, damage, cost or expense of any kind whatsoever and howsoever
caused whether arising under contract, tort (including negligence
and breach of statutory duty) or otherwise, including without
limitation, loss of documentation, loss or corruption of data, loss
of profits or of contracts, remedial costs, loss of operation or
staff time, costs of obtaining substitute goods or services and
loss of goodwill or anticipated savings, even if it has been
advised of the possibility. Databarracks cannot and does not know
the value of the data you have stored and accordingly you are in a
better position to assess the risk of loss of data and take out
appropriate insurance than Databarracks.
24.3 The express warranties given in this Agreement are in lieu of
all warranties, conditions, terms, representations, undertakings
and obligations (express or implied) imposed by statute, common law
or otherwise all of which are hereby excluded to the maximum extent
permitted by law.
24.4 The above exclusions and limitations shall apply to the
fullest extent permissible at law but neither Party excludes or
limits liability for death or personal injury caused by its
negligence or that of its employees or agents and for which it is
responsible, or for fraud or wilful deceit and nothing in this
24 shall have the effect of derogating from the statutory rights
of a consumer as defined in the Consumer Transactions (Restrictions
on Statements) Order 1976 (as amended).
24.5 The Parties hereto acknowledge that the exclusions set out
above are fair and reasonable in all the circumstances and that the
exclusions and limitations of liability set out above are
reasonable notwithstanding that they may have the effect of
protecting Databarracks from losses for which it may be insured
(and the Parties acknowledge that there are sound commercial
reasons for so doing, such as maintaining a good insurance claims
24.6 No indemnity in this Agreement shall be effective to the
extent that it has the effect of excluding or restricting liability
as set out in Clause 24.4 above.
24.7 You agree fully and effectively to indemnify Databarracks
against any claim, cost or expense arising in any way from any
breach by you of this Agreement.
If any provision of this Agreement is found by a court or other
competent authority to be void or unenforceable
25.1 that provision shall be deemed to be deleted from this
Agreement and the remaining provisions of this Agreement shall
continue in full force and effect; and
25.2 the Parties shall negotiate in good faith in order to agree
the terms of a mutually satisfactory provision to be substituted
for that provision.
26. WHOLE AGREEMENT
26.1 Subject to clause 26.3 below this Agreement (including the
documents and instruments referred to in it) supersedes all prior
representations, arrangements, understandings and agreements
between the Parties relating to its subject matter and is the
entire complete and exclusive agreement and understanding between
the Parties relating to its subject matter.
26.2 Each Party acknowledges that it has not relied on any
representation, arrangement, understanding or agreement (whether
written or oral) not expressly set out or referred to in this
26.3 Clauses 26.1 and 26.2 above shall not apply to the extent
that they relate to any warranty, representation or undertaking
made fraudulently in which case the other Party shall be entitled
to all the remedies available under English law .
You may not assign transfer sub-contract or otherwise dispose of
any rights or obligations under this Agreement without the prior
written consent of Databarracks.
28.1 Any notice given under this Agreement shall be in writing and
shall be delivered or sent by pre-paid registered post, email or by
fax to the address of the relevant party as set out at the head of
this Agreement, or to such address as subsequently notified to the
other party pursuant to this clause. In the case of post, the
notice shall be deemed to have been received 72 hours after it was
posted, and in the case of fax or email, as soon as it has finished
being sent, provided (in the case of fax) that the sending machine
confirms that the receiving machine has received the notice
error-free and in the case of email that no non-delivery receipt
was received by the sender within 72 hours after sending.
29. RIGHTS OF THIRD PARTIES
This Agreement is not intended to convey a benefit on any person
not a party to it and accordingly the provisions of the Contracts
(Rights of Third Parties) Act 1999 are excluded.
30. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of England and Wales
and the Parties agree to submit to the non-exclusive jurisdiction
of the English Courts.