1. Background 

Thank you for visiting our Terms of Use (Agreement), we are Sahelay Pty Ltd ACN 663 844 095 of 27/44 St Georges Terrace, Perth, WA 6000 (Sahelay, we, our, us and other similar terms). We provide a range of information technology services, including cloud backup and restoration services, which we refer to in this Agreement as our Services (Services). 

This Agreement outlines the terms and conditions associated with your use of our Services. It is your obligation to ensure that you have read, understood and agree to the most recent terms available at http://sahelay.com/terms (Website). 

1. Agreement 

1. Accepting this Agreement 

By creating an Account with us, you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using that Account or any associated Services. 

You must not create an Account with us if you are not able to form legally binding contracts or are under the age of 18.  

If you create an Account on behalf of your employer or any other entity, you represent and warrant you hold authority to enter into this Agreement on behalf of that entity and that the entity will comply with the obligations contained herein. 

1. Term 

This Agreement will commence when you create an Account with us and will continue until terminated in accordance with clause 13.  

1. About this Agreement 

Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined in clause 15.1. They aid to clarify the terms and conditions. Please feel free to email us at support@sahelay.com if you have any questions. 

1. Accounts and security 

1. Registering an Account 

In order to use the Services, you are required to provide us with Personal Information and create an Account with us. 

You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide to us is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information. 

We reserve the right to reject any new Account in our absolute discretion.  

1. Account security 

Maintaining the security of your Account is important to ensuring your data and Personal Information. We work hard to keep our Services secure and we ask you to contribute. 

You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorised employee or agent may create an Account on behalf of your business. You also agree not to disclose your Account security credentials to another person or permit them to access your Account.  

You are responsible for the activities undertaken using your Account, and any User Accounts, whether such activities are authorised by you or not. 

1. User Accounts 

If you create an account for any of your Authorised Users, you acknowledge and agree that you are solely responsible for all activity undertaken by that user, the management of Account security and granting or removing permissions associated with that User Account. 

1. Our right to suspend 

We reserve the right to limit or suspend your access to our Services if you fail to pay the Service Fee; if your account has been inactive for the last 28 days; or if in our reasonable opinion, you are in breach of any of your obligations or warranties in this Agreement.  

Suspending your account will not constitute a breach of this Agreement by us, nor will it alter your obligation to pay the Service Fees. 

1. Services 

1. Subscribing to Services 

Users with an active Account may subscribe to Services so long as they have not received a Cancellation Notice. The details of a Subscription to a particular Service, including the Service Fees and Subscription Period are set out in the particular Service Offering. 

Some Service Offerings may have Usage Restrictions and/or Consumption Fees associated with the use of that Service.  

1. Usage Restrictions  

Some Services may have Usage Restrictions, including those relating to the use of Service specific resources. Usage Restrictions may set hard limits on the use of the associated Services or result in additional Consumption Fees if the Usage Restrictions are exceeded. 

You acknowledge and agree you are solely responsible for monitoring resource usage and complying with Usage Restrictions. 

1. Downloadable software 

Certain Services require the use of downloadable software. Where you subscribe to a Service requiring the use of our Software, we grant you a non-exclusive, non-transferable and revokable licence to use that software for the Subscription Period. 

You are solely responsible for the installation, patching and removal of any Software to be used within your own systems. 

1. Updates and discontinuance 

We reserve the right to discontinue any of our Services in our sole and absolute discretion. If you have subscribed to a Service which we discontinue we will give you notice at least one Subscription Period prior to the discontinuance of the service. 

Notwithstanding the forgoing, if a third party terminates an agreement with us or our access to Third Party Infrastructure, for whatever reason, we may terminate your use of any associated Service with immediate effect.  

You acknowledge and agree that during routine maintenance we may implement changes, additions or deletions to the functions, features, performance, or other characteristics of our Services (Updates) which may change the manner in which they function. The provision of Updates to our Services do not give rise to a breach of this Agreement provided they do not materially decrease their functionality.  

To make use of new features within the Services you may be required to transition to an alternate Service Offering. 

1. Service Specific Terms 

Certain services may have terms in addition to these terms which apply to the subscription of that Service. You agree to comply with any Service Specific Terms referred to in the Service Offering at the time of signing up to the Service. 

1. Support and maintenance 

1. Support 

Support for our Services is provided in accordance with the support arrangements as set out on our Website and may vary from time to time.  

1. System maintenance 

You acknowledge and agree that many of our Services operate on Third Party Infrastructure. From time to time Third Party Infrastructure may become inaccessible or unavailable. We neither control nor are we liable for faults in Third Party Infrastructure, the telecommunication services needed to access it, nor the consequences which arise from faults in either. 

If it is necessary to interrupt your use of our Services, we will endeavour to provide reasonable notice (where possible) of when, and the anticipated duration for which, the Service will be unavailable. 

You acknowledge and agree:  

1. access to our Services may be interrupted for many reasons, some of which are beyond our control; 

1. that we are not liable for any loss, foreseeable or not, arising from any interruption to access, planned or not; and  

1. any such temporary interruptions will not constitute a breach of these terms. 

1. Your obligations and use of the Services 

1. Service Fees 

Service Fees are set out in the Service Offering associated with the particular Service and may consist of fixed prices per Subscription Period as well as Consumption Fees associated with the use of Service resources. 

Where we provide fee estimation tools and examples, these are guidelines only. You are solely responsible for calculating the Service Fees based on the details set out in the Service Offering. 

1. Payment 

We will provide you with a tax invoice for the Service Fee associated with any Service Offering, which you agree to pay in accordance with the Payment Terms. 

Unless expressed otherwise, Service Fees are quoted in Australian Dollars and are exclusive of goods and services tax, value added tax, withholding taxes, duties and charges imposed or levied in Australia, or overseas, in connection with this Agreement.  

You are responsible for payment of all taxes, bank fees and charges applied by any financial service provider, which you choose to use. 

1. Lawful use of our Services 

You agree to comply with all Laws when making use of your Account and any related Service. You undertake not to upload, store or access any data via our Services if such access or storage would infringe a person’s Intellectual Property right, breach any Law, including Privacy Law. 

1. Conduct which is expressly prohibited 

You may only acquire and make use of our Services for the sole purpose of meeting your internal business needs. You must not use or include any part of our Services in any service bureau or fee generating service offered to third parties 

You must not: 

1. in any way tamper with, hinder or modify our Services; 

1. knowingly transmit any viruses or other disabling features to or via our Services; 

1. intentionally disable or circumvent any protection or disabling mechanism of our Services; 

1. install or store any software applications, code or scripts on or through our Services, other than via the facilities made available to you; 

1. use our Services in any way which could be reasonably expected to interfere with or damage our systems, any other operator's systems, or another user's enjoyment of our Services; or 

1. attempt, facilitate or assist another person to do any of the above acts.  

1. Privacy  

You agree and consent to us handling your Personal Information in accordance with our Privacy Policy. We may amend our Privacy Policy in our sole discretion. If we amend our Privacy Policy, we will post the new version on our Website.   

Each party agrees to notify the other party of any unauthorised access, use, modification, disclosure or other misuse of any Personal Information collected, stored or accessed in connection with this Agreement as soon as practicable after becoming aware of such activity and provide reasonable assistance to the other party in the investigation, assessment and containment of any data breach associated with this Agreement.   

1. Confidentiality 

1. Confidentiality 

A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information. 

Notwithstanding any other provision of this clause 8, a party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers and accountants. 

A party will not be in breach of this clause 8 in circumstances where it is legally compelled to disclose the other party's Confidential Information. 

1. Permitted Disclosures 

We may disclose information, including, but not limited to, your Personal Information or a transmission made using our Services, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request, to protect our legal rights, prevent harm to persons or where such disclosure is necessary to the proper operation of our Services (Permitted Disclosure). 

You acknowledge and agree, we have no obligation to inform you if Permitted Disclosures are made.  

1. Intellectual Property 

We warrant we own or have a licence to use the Intellectual Property provided as part of our Services. 

You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to: 

1. create an adaptation or translation of, all or part of our Services in any way; 

1. use our Services in a manner which may infringe any other persons Intellectual Property; 

1. incorporate all or part of our Services in any webpage, site, application or other digital or non-digital format; or 

1. except to the extent that reproduction occurs automatically through its ordinary use, directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in our Services. 

1. Warranties 

We aim to provide the best possible user experience, however, subject to the Non-excludable Conditions, we make no warranties or guarantees that our Services are fault free, regarding our Services’ fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, our Services. 

1. Limitation of Liability 

1. Implied Conditions 

We expressly exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition. 

1. Limitation of Liability 

Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including Consequential Losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including: 

1. our Services being inaccessible for any reason; 

1. your failure to implement or validate a disaster recovery plan, system redundancy or risk management plans, which if implemented and tested would have avoided damages or loss of any kind; 

1. incorrect or corrupt data, lost data, or any inputs or outputs of our Services; 

1. computer virus, trojan, ransomware and other malware in connection with our Services; 

1. security vulnerabilities in our Services or any breach of security that results in unauthorised access to, or corruption of data; 

1. a failure of Third Party Infrastructure; 

1. negligence arising from our activities or that of our service providers; 

1. the occurrence of an Event of Force Majeure; 

1. your breach of this Agreement; or 

1. any act or omission by you, your personnel, your associates or any related body corporate under or in relation to this Agreement. 

1. Limits to liability associated with goods and services 

To the fullest extent possible under the law, we limit our liability for any breach to: 

1. in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods, or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and 

1. in the case of services: the resupply of the services or the payment of the cost of having the services resupplied. 

1. Consequential Loss 

Notwithstanding any other clause in this Agreement, and to the maximum extent permitted at law, neither party is liable to the other for any Consequential Loss. 

1. Indemnity 

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, in connection with this Agreement or your use of our Services, including any costs arising from your breach of this Agreement, your infringement of any third party Intellectual Property rights associated with this Agreement, any harm to, claim or action by a third party (including to that third party’s personal property) which arise directly or indirectly from your use of our Services and your breach of any Law including, Privacy Law. 

1. Dispute Resolution 

A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 12 before commencing any legal proceedings. 

If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute. 

Each party must pay its own internal and legal costs in relation to complying with this clause 12. The mediator’s costs are to be shared equally. 

The parties acknowledge and agree this clause 12 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court. 

1. Termination 

1. Cancellation Notice 

Termination of this Agreement must be in writing. The parties acknowledge and agree the methods set out in this clause 13.1 constitute notice in writing. 

If you wish to terminate this Agreement you may do so by sending us an email to support@sahelay.com or cancelling your account via the services made available to you in your Account.  

If we terminate this Agreement, we will send you notice to the email associated with your Account. 

1. Termination for convenience 

Either Party may terminate this agreement by providing the other with 28 days notice. 

If you have subscribed to one of our Services, prior to receiving a Cancellation Notice, and the Subscription Period would extend beyond the date of Termination of this Agreement, the Agreement will automatically extend until the end of that Subscription Period. 

You must not subscribe to other Services after receiving or delivering a Cancellation Notice.  

1. Termination for cause 

Either party may immediately terminate this Agreement if the other party commits a material breach of this Agreement and the breach is incapable of being remedied, or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 14 days after the receipt of notice to remedy. 

1. Immediate termination 

We may terminate this Agreement, immediately by providing a Cancellation Notice, if your Account, has been suspended for, or has been inactive for, at least 28 days. 

1. Actions upon termination 

Upon termination: 

1. you must immediately stop using our Services; 

1. you must remove any software we provide to you as part of the Service Offering; 

1. we reserve the right to permanently erase any data associated with your Account; 

1. you will no longer have access to your Account or User Accounts; and 

1. if this Agreement was terminated in accordance with clause 13.3, you must not attempt to access our Services or register a new Account without our prior written consent. 

1. General 

Assignment - We may assign, encumber, declare a trust over or otherwise create an interest in our rights in this Agreement without your consent. 

Entire Agreement - This document contains the entire agreement between the parties about its subject matter.  Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect. 

Governing law - The laws of Western Australia govern this Agreement. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there. 

Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:  

1. which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and 

1. which you send, must be either delivered or posted by prepaid post to the address set out at clause 1  or sent by email to our email address set out at clause 2.3. 

Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.   

Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect. 

Variations to this Agreement - We may vary this agreement by giving 28 days written notice to you. If you do not accept the terms of the variation you may terminate this Agreement in accordance with clause 13. 

1. Definitions and interpretation 

1. Definitions 

Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings: 

Account means the username and access credentials used when you subscribe to our Services. 

Agreement means these terms and conditions and any Service Specific Terms incorporated into them by reference. 

Authorised User means one of your personnel who you have provided with a User Account. 

Cancellation Notice means a notice sent by either party, in accordance with clause 13.1, requesting the termination of this Agreement. 

Confidential Information means information that is by its nature confidential, including but not limited to your data, information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, the system operations associated with our Services and security credentials. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this Agreement. 

Consequential Loss means indirect or consequential loss not arising as a natural consequence of a breach or other event giving rise to liability of a party, any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity or loss of data. 

Consumption Fees means variable fees based on the consumption of Service resources, as set out in the Service Offering. 

Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code. 

Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right. 

Law means any law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory of Australia and any of the foregoing relevant to the jurisdiction in which you operate). 

Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded. 

Payment Terms means 14 days from the date on our invoice. 

Permitted Disclosure takes its meaning from clause 8.2. 

Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form. 

Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles. 

Privacy Policy means the privacy policy available on our Website as amended by us from time to time. 

Renewal Date, with respect to a Service, means a date one day following the initial (and each subsequent) Subscription Period. 

Service takes its meaning from clause 1. 

Service Fee means the price payable for a Subscription to our Services, including Consumption Fees, as set out in the details of the Service Offering. 

Service Offering means one of the Service Offerings advertised on our Website from time to time. 

Service Specific Terms means any terms referenced in the Service Offering which apply to the use of that Service and operate in addition to the terms set out herein. 

Subscription means your right and the conditions associated with your access to a specific Service. 

Subscription Period means the duration of time you Subscribe to a specific Service Offering as selected at the time of signing up to that Service.  

Third Party Infrastructure means any information technology service, network infrastructure, carriage service or public utility which is used in the provision of the Services which is not owned by us. 

You or your means the person or entity who set up an Account with us. 

Update takes its meaning from clause 4.4. 

Us, we or our means Sahelay Pty Ltd ACN 663 844 095. 

User Account means a subsidiary account which you have provided to one of your personnel. 

Website means the website located at http://sahelay.com and any of its subdomains. 

1. Interpretation 

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows: 

1. a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party; 

1. unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry; 

1. "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context; 

1. where a term is defined, other grammatical forms of that term will be taken to have the same meaning; 

1. headings are for convenience and will not affect interpretation; 

1. words in the singular will be taken to include the plural and also the opposite; 

1. when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body; 

1. a reference to a party's conduct includes omissions as well as acts; and 

1. if a party is described as having discretion in a matter, the discretion in that matter will be interpreted as sole and absolute.