Spark DaySave Terms and Conditions

Spark DaySave Terms and Conditions

Spark DaySave Terms and Conditions

  1. Product Terms:

    These terms and conditions ("Product Terms") apply to your use of the Spark DaySave data backup (DaySave) which includes the underlying DaySave client software ('Software'), including any updates that may be provided to you and any accompanying written documentation. By purchasing DaySave you agree that you have read, understand and agree to be bound by these Product Terms.

    In addition, Spark's standard Business Terms and Conditions apply to your use of DaySave. If there is any inconsistency between Spark's Business Terms and Conditions and these terms and conditions, these DaySave Product Terms will prevail to the extent of that inconsistency.

  2. Getting Started

    1. Registration on Spark Business Hub:
      Before purchasing DaySave your business will need to be registered on the Spark Business Hub. If you have not already registered you can do so by going here – Register on the Business Hub . When you purchase DaySave, the service itself and any ancillary services will be activated for your customer account and your user account will be given administrator rights for these services.
    2. What you'll need to use Daysave:
      Each DaySave plan comes with one DaySave licence included. You will need to buy additional licences up to the maximum allowed by your chosen plan.

      PCs and Servers need separate DaySave plans. You need a specific PC or server Daysave license for every PC or server that you want to back up using DaySave, and a DaySave plan relevant to the storage capacity onto which you will back up the information.

      If you require more data allocation for your backup, but do not require more licences, you can double the storage capacity of your DaySave plan for the remainder of that billing month for an extra $10+GST.

      DaySave requires a broadband connection and you are responsible for any charges associated with your internet connection, and any software or hardware that can be used with DaySave.

    3. Set-up:
      To provision and complete the set up of DaySave you will be required to:
      1. Browse the DaySave pages on the Spark website.
      2. Use the Product Selection Wizard to help determine the best DaySave plan for your needs. Once the wizard recommends a plan, it will take you through to the ordering screen. You also have the option of skipping the wizard and proceeding directly to order.
      3. You are then required to select a PC/Server plan and purchase additional licences if required.
      4. The product order is then provisioned.
      5. You will be notified when the provisioning is complete via email
      6. You will then be able to login to the Business Hub and use the Manage Users function for DaySave.
      7. Once licenses are applied to the users in your organisation, an activation email is sent, and you can then download the DaySave ‘client’ and start the initial upload of your data.
  3. 30 Day Free Trial

    If you are not an existing DaySave customer, you may elect to enjoy a free 30 day free trial of DaySave (Starter Plan) for 1 PC and/or 1 Server, with a max storage of 2GB for each (Free Trial).

    These Product Terms will apply to your Free Trial with the exception that you do not need to pay the DaySave monthly plan charge during the Free Trial, but if you are a non-Spark broadband customer, you will be responsible for any broadband fees or additional data charges you incur using DaySave.

    If you do not contact Spark prior to the expiry of the Free Trial to cancel your use of DaySave, you will automatically roll-over to the Open Term Starter Plan. Spark will send you an email confirming that you are on the Open Term Starter Plan and will start charging you for DaySave on the Open Term Starter Plan.

    Unless otherwise agreed by Spark, you acknowledge that you are entitled to one Free Trial in any 12 month period only.

    The Free Trial period does not count towards any fixed term plan you elect to take following the Free Trial.

  4. Term of Plan

    1. Term:
      You can elect to enjoy DaySave on either an open term or on a 12 or 24 month fixed term plan. See DaySave plans. The term will start on the date that you complete your order. The Free Trial period does not count towards any fixed term plan you elect to take following the Free Trial.
    2. Open Term:
      If you have chosen to take DaySave on an open term basis you may cancel it at any time by providing Spark with at least 30 days notice.
    3. Fixed Term:
      If you have chosen to take DaySave on a 12 or 24 month fixed term basis, you may cancel it at any time by providing Spark with at least 30 days notice and if you wish to cancel before the expiry of the fixed term you will incur an early disconnection fee of $60+GST per DaySave plan. At the end of each fixed term, your plan will revert to open term basis until such time as you choose to change it to on a fixed term basis.
  5. Charge

    1. Pricing:
      The monthly plan charges and service fees for DaySave are available for viewing here We may change these at any time. You agree to pay for DaySave in accordance with the monthly plan charges and service fees set out. All monthly plan charges and service fees are quoted exclusive of GST. You must pay GST in addition to all plan charges and service fees at the same time and in the same manner as the charge or fee to which the GST relates.
    2. Invoicing:
      Spark will invoice you monthly in advance. Where the start and end date of your term fall in the middle of a month, your first and last invoice will be adjusted to take this into account.
    3. Payment Options:
      DaySave monthly plan charges and service fees will be added to your monthly Spark account. You will then pay Spark in the usual manner.
    4. Mistakes:
      If you believe that any invoice contains a mistake, please contact Spark immediately. You do not need to pay the disputed portion of the invoice while the matter is being investigated. If there is a valid mistake in the invoice, Spark will provide a refund or credit on your next invoice as appropriate. If there is no mistake, and the due date for payment has already passed, the disputed amount will be payable by you immediately.
  6. Our Responsibilities

    1. Provision of DaySave:
      We will always do our best to provide DaySave in a reliable and high-quality manner. However, we do not guarantee that DaySave will always operate uninterrupted or error-free. We do not make any representation or guarantee as to the suitability or legality of use of DaySave outside New Zealand. We will take reasonable steps to ensure that DaySave is free from viruses, disabling programming codes, instruction or other such items. However, we do not make any guarantee that DaySave is free from viruses, disabling programming codes, instruction or other such items.
    2. Security:
      When backing up your data, DaySave will use security procedures and process that meet SAS70 certification. Your encrypted files will be sent via 128-bit SSL, the same encryption used in online banking, or you can choose the option of utilizing military-grade 256-bit AES encryption at the beginning of your backup process.
    3. Support:
      If you have unresolved concerns with DaySave including set up or technical support issues, please contact our Business Hub Support team at 0800 BUSINESS (28 74 63). As issues may be complex or require investigation, resolution cannot be guaranteed within any certain time period.
  7. Your Responsibilities

    1. Licence to Use DaySave and Software:
      Subject to these DaySave Product Terms, you are granted a non-exclusive license to install and execute copies of Software (in executable code form only) on your business' computers and only for the purpose of accessing and using the Service. Certain third party code may be provided with the Software. The third-party license terms accompanying such code, and not these Product Terms, will govern your use of such code. You agree not to (and not to allow third parties to):
      1. sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party,
      2. modify, adapt, translate, or prepare derivative works from the Software or Service,
      3. decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service
      4. extract portions of the Software's files for use in other applications, or
      5. remove, obscure, or alter Spark’s or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service.
    2. Unauthorised Use:
      You must not use, and you must take all reasonable precautions to ensure that no one uses, your DaySave service:
      1. fraudulently or in connection with a criminal offence;
      2. to send, knowingly receive, upload, download or use any material which is in breach of privacy, copyright confidence or any other rights or laws, or is offensive, abusive, indecent, defamatory, obscene or menacing;
      3. to cause annoyance, inconvenience or needless anxiety;
      4. to spam or to send or provide unsolicited advertising or promotional material or knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; and
      5. in any manner which contravenes the Privacy Act 1993;
      6. in an unlawful manner, in contravention of any legislation, laws, license or third party rights or in contravention of any acceptable use policy we may have in place from time to time.
    3. Directions:
      You must follow all directions given by Spark in relation to the proper use of DaySave and co-operate with any of the third party service providers or licensors that we use in providing DaySave to you.
    4. Passwords:
      You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you choose to use a private key instead of the managed key, and you lose it, there is no way Spark can restore the information on your behalf.
    5. Security of Your Network:
      You are responsible for the physical security of your internal network, server and application security, desktop, notebook security and equipment or software you use in conjunction with DaySave.
    6. Unauthorised Access:
      You are responsible for ensuring that no unauthorised access is obtained to DaySave through your use of these services. You will be entirely responsible and liable for all activities (including data and information accessed, transmitted, processed and/or received) conducted through your DaySave service whether authorised by you or not and any consequences if any person misuses your DaySave service or fails to comply with these Product Terms and all charges incurred.
    7. Accurate Information:
      When you submit your Business Hub registration form you must provide Spark with certain personal and business information for the purpose of opening an account for you and providing DaySave. You agree that all information provided by you for the purpose of this Agreement is complete and accurate in all respects. You agree that each person listed in relation to your account as being associated is your properly authorised agent with authority to act on your behalf in relation to all aspects of these Product Terms (including, without limitation, modification and termination of DaySave). You also agree to keep Spark updated of any changes to your account information.
    8. Legal Authority:
      You agree that you are (a) if a natural person, at least 18 years of age and legally entitled to enter into and perform the obligations under these Product Terms; (b) if a company or other corporate entity, that you have full legal authority to agree to these Product Terms and to perform your contractual obligations.
    9. Personal Information:
      Spark collects, uses and holds information about you, including personal information (as defined by the Privacy Act 1993), in accordance with our standard Business Terms and Conditions which are incorporated into these Product Terms.

      You acknowledge and agree that any data that you choose to upload using DaySave, which may include personal information about you and others, is collected and then stored by our third party service provider (Mozy International Limited) on servers located outside New Zealand, for example in the United States of America.

      Spark and Mozy International Limited will, to the extent relevant, hold any personal information it collects form you as a result of your use of DaySave as 'agent' for the purposes of the Privacy Act and will maintain reasonable security safeguards to protect such personal information against destruction, loss, access, corruption and alteration and will only use it for the purposes of providing DaySave to you.

    10. Indemnity:
      You are solely responsible for your use of, and for any data that you upload via DaySave. You agree to indemnify, defend, and hold harmless Spark and its third party licensors and suppliers from any claim, loss, cost, liability and expense arising from or related to your data, your use of DaySave or your violation of the Daysave Product Terms.
  8. Cancellation and Termination

    1. Termination by You:
      You may cancel your DaySave plan at any time on at least 30 days prior notice to Spark. Your usual charges will continue to apply for up to 30 days after the date you cancel your service, even if it is disconnected within that period (there will be some exceptions). Where you have taken DaySave on a fixed term plan basis and you wish to cancel before the expiry of the applicable fixed term, you will incur an early disconnection fee of $60+GST per DaySave plan.
    2. Termination by Spark:
      Spark may terminate your use of DaySave at any time, by notice in writing to you:
      1. if you breach any provision of these Product Terms. Where that breach is capable of remedy Spark will first give you 10 days to remedy the breach;
      2. if you (where you are a business) go into liquidation or are removed from the Companies House register or a receiver or statutory manager is appointed for you or where you are an individual you are declared bankrupt, or any event similar in nature to these occurs, or
      3. in accordance with the Changes to these Product Terms and the DaySave Service clause below.
    3. Consequence of Termination:
      If for any reason your use of DaySave is terminated or otherwise comes to an end, you agree that you will immediately destroy and permanently erase all copies of the Software and that your access rights to DaySave will immediately terminate.

      If your use of DaySave is terminated, other than for your failure to comply with these Product Terms, Spark will use commercially reasonable efforts to make your data on DaySave available for you to download for a period of three (3) days. Spark has no obligation to provide you with a copy of your Data and may remove and discard any Data after 30 days.

  9. Intellectual Property:

    You acknowledge that Spark or its third party service providers own all rights, title and interests in and to the Software and DaySave, portions thereof, or software or content provided through or in conjunction with the Software or DaySave, including without limitation all intellectual property rights. Except for the license granted in these Product Terms, all rights in and to the Software and DaySave are reserved, and no implied licenses are granted.

  10. Disclaimer of Warranties:

    1. No Warranties:
      DaySave and Software and any third party software and services are provided "as is," with no warranties whatsoever. Spark and its third party service providers expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title, and non-infringement of proprietary rights and any warranties regarding the security, reliability, timeliness, and performance of Daysave, the Software or any such third party software or services.
    2. Use at Your Own Risk:
      You understand and agree that you download and/or use DaySave and Software, and all third party software or services made available in conjunction with or through the software or service, at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download or use of Daysave, the Software and such third party software and services.
    3. Use for Business Purposes:
      You agree that you are purchasing DaySave for business purposes, as defined in the Consumer Guarantees Act 1993, and you agree that the provisions of that Act will not apply to DaySave.
  11. Limitation of Liability

    Under no circumstances shall Spark or its third party service providers be liable for any indirect, incidental, consequential, special, exemplary, or punitive loss or damages arising from or related to DaySave or Software, whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if Spark or its third party service providers have been advised of the possibility of such damages).

    Without limiting the foregoing, the total aggregate liability of Spark or its third party service providers arising from or in connection with Daysave, the Software or these Product Terms shall be limited to direct loss or direct damage only and shall not exceed the amount, if any, paid by you to Spark or its third party service providers for the software or services. If Daysave and/or the Software are provided without charge, then Spark or its third party service providers shall have no liability to you whatsoever.

    The foregoing limitations of liability shall apply whether the damages arise from use or misuse of and reliance on Daysave and / or the Software, from inability to use Daysave and/or the Software, or from the interruption, suspension, or termination of Daysave and / or the Software (including any such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law.

    Neither DaySave or the Software are intended for use in connection with any nuclear, aviation, mass transit, or medical application or any other inherently dangerous application that could result in death, personal injury, catastrophic damage, or mass destruction and you agree that Spark or its third party service providers will have no liability of any nature as a result of any such use of DaySave or Software.

  12. Changes to these Product Terms and DaySave

    1. Changes to these Product Terms:
      Spark reserves the right to change these Product Terms at any time. Any change to these Product Terms will be effective upon acceptance of registration for new users and effective for all existing users 10 days after the posting of any amended terms on the Spark Business Hub website. If you do not agree to any changes to these Product Terms, you must terminate your account immediately. Early termination fees will be waived for any fixed term contracts that are terminated as a result of a material change to the Product Terms.
    2. Changes to DaySave:
      Spark may at any time modify, suspend or withdraw and cease to provide DaySave or any part thereof in its sole discretion and without notice. Spark will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of DaySave either by sending an email to the email address you provide with your registration or by a posting on the Spark website. However, in no event will Spark or its third party providers be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.
  1. Product Terms:

    These terms and conditions ("Product Terms") apply to your use of the Spark DaySave data backup (DaySave) which includes the underlying DaySave client software ('Software'), including any updates that may be provided to you and any accompanying written documentation. By purchasing DaySave you agree that you have read, understand and agree to be bound by these Product Terms.

    In addition, Spark's standard Business Terms and Conditions apply to your use of DaySave. If there is any inconsistency between Spark's Business Terms and Conditions and these terms and conditions, these DaySave Product Terms will prevail to the extent of that inconsistency.

  2. Getting Started

    1. Registration on Spark Business Hub:
      Before purchasing DaySave your business will need to be registered on the Spark Business Hub. If you have not already registered you can do so by going here – Register on the Business Hub . When you purchase DaySave, the service itself and any ancillary services will be activated for your customer account and your user account will be given administrator rights for these services.
    2. What you'll need to use Daysave:
      Each DaySave plan comes with one DaySave licence included. You will need to buy additional licences up to the maximum allowed by your chosen plan.

      PCs and Servers need separate DaySave plans. You need a specific PC or server Daysave license for every PC or server that you want to back up using DaySave, and a DaySave plan relevant to the storage capacity onto which you will back up the information.

      If you require more data allocation for your backup, but do not require more licences, you can double the storage capacity of your DaySave plan for the remainder of that billing month for an extra $10+GST.

      DaySave requires a broadband connection and you are responsible for any charges associated with your internet connection, and any software or hardware that can be used with DaySave.

    3. Set-up:
      To provision and complete the set up of DaySave you will be required to:
      1. Browse the DaySave pages on the Spark website.
      2. Use the Product Selection Wizard to help determine the best DaySave plan for your needs. Once the wizard recommends a plan, it will take you through to the ordering screen. You also have the option of skipping the wizard and proceeding directly to order.
      3. You are then required to select a PC/Server plan and purchase additional licences if required.
      4. The product order is then provisioned.
      5. You will be notified when the provisioning is complete via email
      6. You will then be able to login to the Business Hub and use the Manage Users function for DaySave.
      7. Once licenses are applied to the users in your organisation, an activation email is sent, and you can then download the DaySave ‘client’ and start the initial upload of your data.
  3. 30 Day Free Trial

    If you are not an existing DaySave customer, you may elect to enjoy a free 30 day free trial of DaySave (Starter Plan) for 1 PC and/or 1 Server, with a max storage of 2GB for each (Free Trial).

    These Product Terms will apply to your Free Trial with the exception that you do not need to pay the DaySave monthly plan charge during the Free Trial, but if you are a non-Spark broadband customer, you will be responsible for any broadband fees or additional data charges you incur using DaySave.

    If you do not contact Spark prior to the expiry of the Free Trial to cancel your use of DaySave, you will automatically roll-over to the Open Term Starter Plan. Spark will send you an email confirming that you are on the Open Term Starter Plan and will start charging you for DaySave on the Open Term Starter Plan.

    Unless otherwise agreed by Spark, you acknowledge that you are entitled to one Free Trial in any 12 month period only.

    The Free Trial period does not count towards any fixed term plan you elect to take following the Free Trial.

  4. Term of Plan

    1. Term:
      You can elect to enjoy DaySave on either an open term or on a 12 or 24 month fixed term plan. See DaySave plans. The term will start on the date that you complete your order. The Free Trial period does not count towards any fixed term plan you elect to take following the Free Trial.
    2. Open Term:
      If you have chosen to take DaySave on an open term basis you may cancel it at any time by providing Spark with at least 30 days notice.
    3. Fixed Term:
      If you have chosen to take DaySave on a 12 or 24 month fixed term basis, you may cancel it at any time by providing Spark with at least 30 days notice and if you wish to cancel before the expiry of the fixed term you will incur an early disconnection fee of $60+GST per DaySave plan. At the end of each fixed term, your plan will revert to open term basis until such time as you choose to change it to on a fixed term basis.
  5. Charge

    1. Pricing:
      The monthly plan charges and service fees for DaySave are available for viewing here We may change these at any time. You agree to pay for DaySave in accordance with the monthly plan charges and service fees set out. All monthly plan charges and service fees are quoted exclusive of GST. You must pay GST in addition to all plan charges and service fees at the same time and in the same manner as the charge or fee to which the GST relates.
    2. Invoicing:
      Spark will invoice you monthly in advance. Where the start and end date of your term fall in the middle of a month, your first and last invoice will be adjusted to take this into account.
    3. Payment Options:
      DaySave monthly plan charges and service fees will be added to your monthly Spark account. You will then pay Spark in the usual manner.
    4. Mistakes:
      If you believe that any invoice contains a mistake, please contact Spark immediately. You do not need to pay the disputed portion of the invoice while the matter is being investigated. If there is a valid mistake in the invoice, Spark will provide a refund or credit on your next invoice as appropriate. If there is no mistake, and the due date for payment has already passed, the disputed amount will be payable by you immediately.
  6. Our Responsibilities

    1. Provision of DaySave:
      We will always do our best to provide DaySave in a reliable and high-quality manner. However, we do not guarantee that DaySave will always operate uninterrupted or error-free. We do not make any representation or guarantee as to the suitability or legality of use of DaySave outside New Zealand. We will take reasonable steps to ensure that DaySave is free from viruses, disabling programming codes, instruction or other such items. However, we do not make any guarantee that DaySave is free from viruses, disabling programming codes, instruction or other such items.
    2. Security:
      When backing up your data, DaySave will use security procedures and process that meet SAS70 certification. Your encrypted files will be sent via 128-bit SSL, the same encryption used in online banking, or you can choose the option of utilizing military-grade 256-bit AES encryption at the beginning of your backup process.
    3. Support:
      If you have unresolved concerns with DaySave including set up or technical support issues, please contact our Business Hub Support team at 0800 BUSINESS (28 74 63). As issues may be complex or require investigation, resolution cannot be guaranteed within any certain time period.
  7. Your Responsibilities

    1. Licence to Use DaySave and Software:
      Subject to these DaySave Product Terms, you are granted a non-exclusive license to install and execute copies of Software (in executable code form only) on your business' computers and only for the purpose of accessing and using the Service. Certain third party code may be provided with the Software. The third-party license terms accompanying such code, and not these Product Terms, will govern your use of such code. You agree not to (and not to allow third parties to):
      1. sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party,
      2. modify, adapt, translate, or prepare derivative works from the Software or Service,
      3. decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service
      4. extract portions of the Software's files for use in other applications, or
      5. remove, obscure, or alter Spark’s or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service.
    2. Unauthorised Use:
      You must not use, and you must take all reasonable precautions to ensure that no one uses, your DaySave service:
      1. fraudulently or in connection with a criminal offence;
      2. to send, knowingly receive, upload, download or use any material which is in breach of privacy, copyright confidence or any other rights or laws, or is offensive, abusive, indecent, defamatory, obscene or menacing;
      3. to cause annoyance, inconvenience or needless anxiety;
      4. to spam or to send or provide unsolicited advertising or promotional material or knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; and
      5. in any manner which contravenes the Privacy Act 1993;
      6. in an unlawful manner, in contravention of any legislation, laws, license or third party rights or in contravention of any acceptable use policy we may have in place from time to time.
    3. Directions:
      You must follow all directions given by Spark in relation to the proper use of DaySave and co-operate with any of the third party service providers or licensors that we use in providing DaySave to you.
    4. Passwords:
      You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you choose to use a private key instead of the managed key, and you lose it, there is no way Spark can restore the information on your behalf.
    5. Security of Your Network:
      You are responsible for the physical security of your internal network, server and application security, desktop, notebook security and equipment or software you use in conjunction with DaySave.
    6. Unauthorised Access:
      You are responsible for ensuring that no unauthorised access is obtained to DaySave through your use of these services. You will be entirely responsible and liable for all activities (including data and information accessed, transmitted, processed and/or received) conducted through your DaySave service whether authorised by you or not and any consequences if any person misuses your DaySave service or fails to comply with these Product Terms and all charges incurred.
    7. Accurate Information:
      When you submit your Business Hub registration form you must provide Spark with certain personal and business information for the purpose of opening an account for you and providing DaySave. You agree that all information provided by you for the purpose of this Agreement is complete and accurate in all respects. You agree that each person listed in relation to your account as being associated is your properly authorised agent with authority to act on your behalf in relation to all aspects of these Product Terms (including, without limitation, modification and termination of DaySave). You also agree to keep Spark updated of any changes to your account information.
    8. Legal Authority:
      You agree that you are (a) if a natural person, at least 18 years of age and legally entitled to enter into and perform the obligations under these Product Terms; (b) if a company or other corporate entity, that you have full legal authority to agree to these Product Terms and to perform your contractual obligations.
    9. Personal Information:
      Spark collects, uses and holds information about you, including personal information (as defined by the Privacy Act 1993), in accordance with our standard Business Terms and Conditions which are incorporated into these Product Terms.

      You acknowledge and agree that any data that you choose to upload using DaySave, which may include personal information about you and others, is collected and then stored by our third party service provider (Mozy International Limited) on servers located outside New Zealand, for example in the United States of America.

      Spark and Mozy International Limited will, to the extent relevant, hold any personal information it collects form you as a result of your use of DaySave as 'agent' for the purposes of the Privacy Act and will maintain reasonable security safeguards to protect such personal information against destruction, loss, access, corruption and alteration and will only use it for the purposes of providing DaySave to you.

    10. Indemnity:
      You are solely responsible for your use of, and for any data that you upload via DaySave. You agree to indemnify, defend, and hold harmless Spark and its third party licensors and suppliers from any claim, loss, cost, liability and expense arising from or related to your data, your use of DaySave or your violation of the Daysave Product Terms.
  8. Cancellation and Termination

    1. Termination by You:
      You may cancel your DaySave plan at any time on at least 30 days prior notice to Spark. Your usual charges will continue to apply for up to 30 days after the date you cancel your service, even if it is disconnected within that period (there will be some exceptions). Where you have taken DaySave on a fixed term plan basis and you wish to cancel before the expiry of the applicable fixed term, you will incur an early disconnection fee of $60+GST per DaySave plan.
    2. Termination by Spark:
      Spark may terminate your use of DaySave at any time, by notice in writing to you:
      1. if you breach any provision of these Product Terms. Where that breach is capable of remedy Spark will first give you 10 days to remedy the breach;
      2. if you (where you are a business) go into liquidation or are removed from the Companies House register or a receiver or statutory manager is appointed for you or where you are an individual you are declared bankrupt, or any event similar in nature to these occurs, or
      3. in accordance with the Changes to these Product Terms and the DaySave Service clause below.
    3. Consequence of Termination:
      If for any reason your use of DaySave is terminated or otherwise comes to an end, you agree that you will immediately destroy and permanently erase all copies of the Software and that your access rights to DaySave will immediately terminate.

      If your use of DaySave is terminated, other than for your failure to comply with these Product Terms, Spark will use commercially reasonable efforts to make your data on DaySave available for you to download for a period of three (3) days. Spark has no obligation to provide you with a copy of your Data and may remove and discard any Data after 30 days.

  9. Intellectual Property:

    You acknowledge that Spark or its third party service providers own all rights, title and interests in and to the Software and DaySave, portions thereof, or software or content provided through or in conjunction with the Software or DaySave, including without limitation all intellectual property rights. Except for the license granted in these Product Terms, all rights in and to the Software and DaySave are reserved, and no implied licenses are granted.

  10. Disclaimer of Warranties:

    1. No Warranties:
      DaySave and Software and any third party software and services are provided "as is," with no warranties whatsoever. Spark and its third party service providers expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title, and non-infringement of proprietary rights and any warranties regarding the security, reliability, timeliness, and performance of Daysave, the Software or any such third party software or services.
    2. Use at Your Own Risk:
      You understand and agree that you download and/or use DaySave and Software, and all third party software or services made available in conjunction with or through the software or service, at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download or use of Daysave, the Software and such third party software and services.
    3. Use for Business Purposes:
      You agree that you are purchasing DaySave for business purposes, as defined in the Consumer Guarantees Act 1993, and you agree that the provisions of that Act will not apply to DaySave.
  11. Limitation of Liability

    Under no circumstances shall Spark or its third party service providers be liable for any indirect, incidental, consequential, special, exemplary, or punitive loss or damages arising from or related to DaySave or Software, whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if Spark or its third party service providers have been advised of the possibility of such damages).

    Without limiting the foregoing, the total aggregate liability of Spark or its third party service providers arising from or in connection with Daysave, the Software or these Product Terms shall be limited to direct loss or direct damage only and shall not exceed the amount, if any, paid by you to Spark or its third party service providers for the software or services. If Daysave and/or the Software are provided without charge, then Spark or its third party service providers shall have no liability to you whatsoever.

    The foregoing limitations of liability shall apply whether the damages arise from use or misuse of and reliance on Daysave and / or the Software, from inability to use Daysave and/or the Software, or from the interruption, suspension, or termination of Daysave and / or the Software (including any such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law.

    Neither DaySave or the Software are intended for use in connection with any nuclear, aviation, mass transit, or medical application or any other inherently dangerous application that could result in death, personal injury, catastrophic damage, or mass destruction and you agree that Spark or its third party service providers will have no liability of any nature as a result of any such use of DaySave or Software.

  12. Changes to these Product Terms and DaySave

    1. Changes to these Product Terms:
      Spark reserves the right to change these Product Terms at any time. Any change to these Product Terms will be effective upon acceptance of registration for new users and effective for all existing users 10 days after the posting of any amended terms on the Spark Business Hub website. If you do not agree to any changes to these Product Terms, you must terminate your account immediately. Early termination fees will be waived for any fixed term contracts that are terminated as a result of a material change to the Product Terms.
    2. Changes to DaySave:
      Spark may at any time modify, suspend or withdraw and cease to provide DaySave or any part thereof in its sole discretion and without notice. Spark will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of DaySave either by sending an email to the email address you provide with your registration or by a posting on the Spark website. However, in no event will Spark or its third party providers be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.
  1. Product Terms:

    These terms and conditions ("Product Terms") apply to your use of the Spark DaySave data backup (DaySave) which includes the underlying DaySave client software ('Software'), including any updates that may be provided to you and any accompanying written documentation. By purchasing DaySave you agree that you have read, understand and agree to be bound by these Product Terms.

    In addition, Spark's standard Business Terms and Conditions apply to your use of DaySave. If there is any inconsistency between Spark's Business Terms and Conditions and these terms and conditions, these DaySave Product Terms will prevail to the extent of that inconsistency.

  2. Getting Started

    1. Registration on Spark Business Hub:
      Before purchasing DaySave your business will need to be registered on the Spark Business Hub. If you have not already registered you can do so by going here – Register on the Business Hub . When you purchase DaySave, the service itself and any ancillary services will be activated for your customer account and your user account will be given administrator rights for these services.
    2. What you'll need to use Daysave:
      Each DaySave plan comes with one DaySave licence included. You will need to buy additional licences up to the maximum allowed by your chosen plan.

      PCs and Servers need separate DaySave plans. You need a specific PC or server Daysave license for every PC or server that you want to back up using DaySave, and a DaySave plan relevant to the storage capacity onto which you will back up the information.

      If you require more data allocation for your backup, but do not require more licences, you can double the storage capacity of your DaySave plan for the remainder of that billing month for an extra $10+GST.

      DaySave requires a broadband connection and you are responsible for any charges associated with your internet connection, and any software or hardware that can be used with DaySave.

    3. Set-up:
      To provision and complete the set up of DaySave you will be required to:
      1. Browse the DaySave pages on the Spark website.
      2. Use the Product Selection Wizard to help determine the best DaySave plan for your needs. Once the wizard recommends a plan, it will take you through to the ordering screen. You also have the option of skipping the wizard and proceeding directly to order.
      3. You are then required to select a PC/Server plan and purchase additional licences if required.
      4. The product order is then provisioned.
      5. You will be notified when the provisioning is complete via email
      6. You will then be able to login to the Business Hub and use the Manage Users function for DaySave.
      7. Once licenses are applied to the users in your organisation, an activation email is sent, and you can then download the DaySave ‘client’ and start the initial upload of your data.
  3. 30 Day Free Trial

    If you are not an existing DaySave customer, you may elect to enjoy a free 30 day free trial of DaySave (Starter Plan) for 1 PC and/or 1 Server, with a max storage of 2GB for each (Free Trial).

    These Product Terms will apply to your Free Trial with the exception that you do not need to pay the DaySave monthly plan charge during the Free Trial, but if you are a non-Spark broadband customer, you will be responsible for any broadband fees or additional data charges you incur using DaySave.

    If you do not contact Spark prior to the expiry of the Free Trial to cancel your use of DaySave, you will automatically roll-over to the Open Term Starter Plan. Spark will send you an email confirming that you are on the Open Term Starter Plan and will start charging you for DaySave on the Open Term Starter Plan.

    Unless otherwise agreed by Spark, you acknowledge that you are entitled to one Free Trial in any 12 month period only.

    The Free Trial period does not count towards any fixed term plan you elect to take following the Free Trial.

  4. Term of Plan

    1. Term:
      You can elect to enjoy DaySave on either an open term or on a 12 or 24 month fixed term plan. See DaySave plans. The term will start on the date that you complete your order. The Free Trial period does not count towards any fixed term plan you elect to take following the Free Trial.
    2. Open Term:
      If you have chosen to take DaySave on an open term basis you may cancel it at any time by providing Spark with at least 30 days notice.
    3. Fixed Term:
      If you have chosen to take DaySave on a 12 or 24 month fixed term basis, you may cancel it at any time by providing Spark with at least 30 days notice and if you wish to cancel before the expiry of the fixed term you will incur an early disconnection fee of $60+GST per DaySave plan. At the end of each fixed term, your plan will revert to open term basis until such time as you choose to change it to on a fixed term basis.
  5. Charge

    1. Pricing:
      The monthly plan charges and service fees for DaySave are available for viewing here We may change these at any time. You agree to pay for DaySave in accordance with the monthly plan charges and service fees set out. All monthly plan charges and service fees are quoted exclusive of GST. You must pay GST in addition to all plan charges and service fees at the same time and in the same manner as the charge or fee to which the GST relates.
    2. Invoicing:
      Spark will invoice you monthly in advance. Where the start and end date of your term fall in the middle of a month, your first and last invoice will be adjusted to take this into account.
    3. Payment Options:
      DaySave monthly plan charges and service fees will be added to your monthly Spark account. You will then pay Spark in the usual manner.
    4. Mistakes:
      If you believe that any invoice contains a mistake, please contact Spark immediately. You do not need to pay the disputed portion of the invoice while the matter is being investigated. If there is a valid mistake in the invoice, Spark will provide a refund or credit on your next invoice as appropriate. If there is no mistake, and the due date for payment has already passed, the disputed amount will be payable by you immediately.
  6. Our Responsibilities

    1. Provision of DaySave:
      We will always do our best to provide DaySave in a reliable and high-quality manner. However, we do not guarantee that DaySave will always operate uninterrupted or error-free. We do not make any representation or guarantee as to the suitability or legality of use of DaySave outside New Zealand. We will take reasonable steps to ensure that DaySave is free from viruses, disabling programming codes, instruction or other such items. However, we do not make any guarantee that DaySave is free from viruses, disabling programming codes, instruction or other such items.
    2. Security:
      When backing up your data, DaySave will use security procedures and process that meet SAS70 certification. Your encrypted files will be sent via 128-bit SSL, the same encryption used in online banking, or you can choose the option of utilizing military-grade 256-bit AES encryption at the beginning of your backup process.
    3. Support:
      If you have unresolved concerns with DaySave including set up or technical support issues, please contact our Business Hub Support team at 0800 BUSINESS (28 74 63). As issues may be complex or require investigation, resolution cannot be guaranteed within any certain time period.
  7. Your Responsibilities

    1. Licence to Use DaySave and Software:
      Subject to these DaySave Product Terms, you are granted a non-exclusive license to install and execute copies of Software (in executable code form only) on your business' computers and only for the purpose of accessing and using the Service. Certain third party code may be provided with the Software. The third-party license terms accompanying such code, and not these Product Terms, will govern your use of such code. You agree not to (and not to allow third parties to):
      1. sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party,
      2. modify, adapt, translate, or prepare derivative works from the Software or Service,
      3. decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service
      4. extract portions of the Software's files for use in other applications, or
      5. remove, obscure, or alter Spark’s or any third party's trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service.
    2. Unauthorised Use:
      You must not use, and you must take all reasonable precautions to ensure that no one uses, your DaySave service:
      1. fraudulently or in connection with a criminal offence;
      2. to send, knowingly receive, upload, download or use any material which is in breach of privacy, copyright confidence or any other rights or laws, or is offensive, abusive, indecent, defamatory, obscene or menacing;
      3. to cause annoyance, inconvenience or needless anxiety;
      4. to spam or to send or provide unsolicited advertising or promotional material or knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; and
      5. in any manner which contravenes the Privacy Act 1993;
      6. in an unlawful manner, in contravention of any legislation, laws, license or third party rights or in contravention of any acceptable use policy we may have in place from time to time.
    3. Directions:
      You must follow all directions given by Spark in relation to the proper use of DaySave and co-operate with any of the third party service providers or licensors that we use in providing DaySave to you.
    4. Passwords:
      You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you choose to use a private key instead of the managed key, and you lose it, there is no way Spark can restore the information on your behalf.
    5. Security of Your Network:
      You are responsible for the physical security of your internal network, server and application security, desktop, notebook security and equipment or software you use in conjunction with DaySave.
    6. Unauthorised Access:
      You are responsible for ensuring that no unauthorised access is obtained to DaySave through your use of these services. You will be entirely responsible and liable for all activities (including data and information accessed, transmitted, processed and/or received) conducted through your DaySave service whether authorised by you or not and any consequences if any person misuses your DaySave service or fails to comply with these Product Terms and all charges incurred.
    7. Accurate Information:
      When you submit your Business Hub registration form you must provide Spark with certain personal and business information for the purpose of opening an account for you and providing DaySave. You agree that all information provided by you for the purpose of this Agreement is complete and accurate in all respects. You agree that each person listed in relation to your account as being associated is your properly authorised agent with authority to act on your behalf in relation to all aspects of these Product Terms (including, without limitation, modification and termination of DaySave). You also agree to keep Spark updated of any changes to your account information.
    8. Legal Authority:
      You agree that you are (a) if a natural person, at least 18 years of age and legally entitled to enter into and perform the obligations under these Product Terms; (b) if a company or other corporate entity, that you have full legal authority to agree to these Product Terms and to perform your contractual obligations.
    9. Personal Information:
      Spark collects, uses and holds information about you, including personal information (as defined by the Privacy Act 1993), in accordance with our standard Business Terms and Conditions which are incorporated into these Product Terms.

      You acknowledge and agree that any data that you choose to upload using DaySave, which may include personal information about you and others, is collected and then stored by our third party service provider (Mozy International Limited) on servers located outside New Zealand, for example in the United States of America.

      Spark and Mozy International Limited will, to the extent relevant, hold any personal information it collects form you as a result of your use of DaySave as 'agent' for the purposes of the Privacy Act and will maintain reasonable security safeguards to protect such personal information against destruction, loss, access, corruption and alteration and will only use it for the purposes of providing DaySave to you.

    10. Indemnity:
      You are solely responsible for your use of, and for any data that you upload via DaySave. You agree to indemnify, defend, and hold harmless Spark and its third party licensors and suppliers from any claim, loss, cost, liability and expense arising from or related to your data, your use of DaySave or your violation of the Daysave Product Terms.
  8. Cancellation and Termination

    1. Termination by You:
      You may cancel your DaySave plan at any time on at least 30 days prior notice to Spark. Your usual charges will continue to apply for up to 30 days after the date you cancel your service, even if it is disconnected within that period (there will be some exceptions). Where you have taken DaySave on a fixed term plan basis and you wish to cancel before the expiry of the applicable fixed term, you will incur an early disconnection fee of $60+GST per DaySave plan.
    2. Termination by Spark:
      Spark may terminate your use of DaySave at any time, by notice in writing to you:
      1. if you breach any provision of these Product Terms. Where that breach is capable of remedy Spark will first give you 10 days to remedy the breach;
      2. if you (where you are a business) go into liquidation or are removed from the Companies House register or a receiver or statutory manager is appointed for you or where you are an individual you are declared bankrupt, or any event similar in nature to these occurs, or
      3. in accordance with the Changes to these Product Terms and the DaySave Service clause below.
    3. Consequence of Termination:
      If for any reason your use of DaySave is terminated or otherwise comes to an end, you agree that you will immediately destroy and permanently erase all copies of the Software and that your access rights to DaySave will immediately terminate.

      If your use of DaySave is terminated, other than for your failure to comply with these Product Terms, Spark will use commercially reasonable efforts to make your data on DaySave available for you to download for a period of three (3) days. Spark has no obligation to provide you with a copy of your Data and may remove and discard any Data after 30 days.

  9. Intellectual Property:

    You acknowledge that Spark or its third party service providers own all rights, title and interests in and to the Software and DaySave, portions thereof, or software or content provided through or in conjunction with the Software or DaySave, including without limitation all intellectual property rights. Except for the license granted in these Product Terms, all rights in and to the Software and DaySave are reserved, and no implied licenses are granted.

  10. Disclaimer of Warranties:

    1. No Warranties:
      DaySave and Software and any third party software and services are provided "as is," with no warranties whatsoever. Spark and its third party service providers expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title, and non-infringement of proprietary rights and any warranties regarding the security, reliability, timeliness, and performance of Daysave, the Software or any such third party software or services.
    2. Use at Your Own Risk:
      You understand and agree that you download and/or use DaySave and Software, and all third party software or services made available in conjunction with or through the software or service, at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download or use of Daysave, the Software and such third party software and services.
    3. Use for Business Purposes:
      You agree that you are purchasing DaySave for business purposes, as defined in the Consumer Guarantees Act 1993, and you agree that the provisions of that Act will not apply to DaySave.
  11. Limitation of Liability

    Under no circumstances shall Spark or its third party service providers be liable for any indirect, incidental, consequential, special, exemplary, or punitive loss or damages arising from or related to DaySave or Software, whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if Spark or its third party service providers have been advised of the possibility of such damages).

    Without limiting the foregoing, the total aggregate liability of Spark or its third party service providers arising from or in connection with Daysave, the Software or these Product Terms shall be limited to direct loss or direct damage only and shall not exceed the amount, if any, paid by you to Spark or its third party service providers for the software or services. If Daysave and/or the Software are provided without charge, then Spark or its third party service providers shall have no liability to you whatsoever.

    The foregoing limitations of liability shall apply whether the damages arise from use or misuse of and reliance on Daysave and / or the Software, from inability to use Daysave and/or the Software, or from the interruption, suspension, or termination of Daysave and / or the Software (including any such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law.

    Neither DaySave or the Software are intended for use in connection with any nuclear, aviation, mass transit, or medical application or any other inherently dangerous application that could result in death, personal injury, catastrophic damage, or mass destruction and you agree that Spark or its third party service providers will have no liability of any nature as a result of any such use of DaySave or Software.

  12. Changes to these Product Terms and DaySave

    1. Changes to these Product Terms:
      Spark reserves the right to change these Product Terms at any time. Any change to these Product Terms will be effective upon acceptance of registration for new users and effective for all existing users 10 days after the posting of any amended terms on the Spark Business Hub website. If you do not agree to any changes to these Product Terms, you must terminate your account immediately. Early termination fees will be waived for any fixed term contracts that are terminated as a result of a material change to the Product Terms.
    2. Changes to DaySave:
      Spark may at any time modify, suspend or withdraw and cease to provide DaySave or any part thereof in its sole discretion and without notice. Spark will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of DaySave either by sending an email to the email address you provide with your registration or by a posting on the Spark website. However, in no event will Spark or its third party providers be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.