EASYNET CHANNEL PARTNERS LIMITED PARTNER MASTER SERVICES AGREEMENT BACK UP SERVICE PRODUCT TERMS

Transcription

1 EASYNET CHANNEL PARTNERS LIMITED PARTNER MASTER SERVICES AGREEMENT BACK UP SERVICE PRODUCT TERMS Registered Office at: St James House Oldbury Bracknell RG12 8TH Company No: BMI MSA v1.0 Page 1 of 9

2 The following terms and conditions are additional to those in the General Terms and Conditions (Schedule A) (GTC / GTC s) and shall apply where, pursuant to an End User Order, the Partner orders Easynet Back-up Services, as further defined in Section 2 below (for the purposes of this Product Terms, the Service ). 1. Definitions Updates means all corrections, modifications, improvements, enhancements, revisions, upgrades or new releases of the Service designated by Easynet as Updates. Updates do not include Easynet products or releases for which Easynet charges separately. All Updates shall become part of the Service. User means an individual user of the Service whether an employee (whether permanent or temporary) or consultant of a business user within the member countries of the European Union to whom the Partner has assigned a personal log-on identification code and confidential password pursuant to this Agreement. The term User includes Partner where the context so requires. 2. Back- Up Service General Description Easynet s online Back-up Service, Powered by Mozy*, is a secure cloud-based backup service designed for the small-to-medium size business environment. A highly scalable, secure, and cost-effective means for backing-up and recovering the information contained on servers and employees desktops. The service automatically backs up company files on the schedule determined by the User, administrator or company IT department. All backed up data is securely encrypted and protected in a off-site data centre and it s easy to restore one file or the contents of an entire hard drive to ensure user productivity is maintained. * Founded in 2005, Mozy is the world s most trusted online backup service for consumers and businesses with more than 3 million customers and 80,000 business customers backing up 90 petabytes of information to multiple data centres around the globe. Mozy is backed by EMC Corporation. 3. Customer Obligations, Requirements and Restrictions 3.1. Technical Environment: The User must have a web browser to access the Service. For internet connectivity, a broadband connection of 128K or higher is recommended. The User acknowledges and agrees that actual access to the Service may be delayed if the User s technical environment does not conform to the standards set forth herein. The User acknowledges that Easynet is not responsible for obtaining or selling to the User the hardware, internet access or any stand-alone third-party software that may be required to meet standard system requirements, or for providing maintenance or support thereof The User will be required to set their application policies for online backup and recovery. The solution then automatically encrypts the selected data and moves it over the internet to a centrally hosted site. The User can retrieve this data as required using the online website The User may not reproduce, alter, distribute or transfer (by any means), display, sublicense, rent, lease, reverse engineer, decompile or disassemble, use in a service bureau, or create derivative works from the Services or documentation relating to the Services or use the Services to attempt any of the foregoing The User acknowledges that any prior version of the Service and the MozyPro Application other than the immediate prior major version as prescribed will not be supported by Easynet. BMI MSA v1.0 Page 2 of 9

3 3.5. Actions Caused by and/or Under the Control of Third Parties. The User acknowledges and agrees that the User s access to the Internet and hosting facilities that support the Services are each provided by one or more third parties. As such, Easynet does not and cannot control the flow of data to or from its hosting environment and other portions of the Internet, nor does it control the availability or functionality of User s access to the MozyPro Site or the Service. Although Easynet shall use all commercially reasonable efforts, in accordance with the terms of its agreement(s) with third party(ies), to maintain such availability and functionality in accordance herewith, Easynet cannot and does not warrant that such events will not occur and consequently shall not be held liable in the event such availability or functionality is rendered inoperable due to any failure of Internet availability as prescribed 4. Easynet s Obligations 4.1. Easynet will provide the Partner with personal log-on identification codes for each User, and the Partner shall be responsible for assigning such identification codes to, and establishing confidential passwords for, such Users. The Partner shall keep a record of its Users, which record Easynet (or its appointed third party) may audit upon reasonable notice to the Partner in order to verify correct payment of fees pursuant to the Agreement Maintenance. During the Term of an End User Order, and at no additional charge, the Partner will be entitled to (i) all Updates; and (ii) all commercially reasonable efforts to diagnose and correct any documented material non-conformance of the Service with its specification Warranty. The Partners exclusive remedy for material non-conformance under Section 4.2 shall be the repair or replacement of the Service, at Easynet s sole discretion. If Easynet cannot repair or replace the Service in a reasonable period of time, Easynet will refund the fees paid to it by the Partner (prorated to the date the Service ceased performing) and terminate the relevant Service. 5. End of Life Easynet shall provide the Partner with no less than sixty (60) days prior written notice of any discontinuance of the sale of the Service, but in any event Easynet agrees to provide support of all existing Services then in use by the Partner and/or its Users for a period of no more than five (5) months ( Wind Down Period ) after Easynet s notice of discontinuance of the sale of the Services, and the Partner agrees to continue to pay for such existing Services then in use, for the applicable User s contracted period but for no more than the Wind Down Period. 6. Charges All pricing will be based on provisioned storage. Provision storage is defined a quota being assigned to a Partner. 7. Branding Requirements The Partner is not allowed to white label the Services and may only resell the same by using the Powered by Mozy logo unless otherwise expressly agreed by Easynet in writing. BMI MSA v1.0 Page 3 of 9

4 Exhibit A Part I Software Terms of Use for MozyPro (B2B) The term Mozy in this licence agreement includes Easynet. Terms and Conditions End User Licence Agreement (This document is included in your product terms It is included here for your reference.) Mozy International Licence and Service Agreement This agreement (the "Agreement") is a legal agreement between you, either an individual or a single legal entity ("You" or "you"), and Mozy International Limited, an Irish company with its registered address at 70 Sir Rogerson s Quay, Dublin 2, Ireland ("Mozy"). This Agreement governs your use of the MozyPro Backup Client software distributed with this Agreement, including any updates that may be provided to you and any accompanying written documentation (the "Software") and the MozyPro backup service ("Service"). Although Mozy may, in its sole discretion, update and maintain the Software, it is under no obligation to do so other than as expressly provided in this Agreement. PRIVACY AND COMMUNICATIONS By entering into this Agreement, you agree to Mozy s collection, use and disclosure of your Personal Data in accordance with the Mozy Privacy Policy, which is incorporated into this Agreement by reference. ACCOUNTS, PASSWORDS, AND SECURITY You must be a registered user to access the Service. 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 lose your password or the encryption key for your account, you may not be able to access your data. You must notify Mozy immediately of any unauthorised use of your account or any other breach of security regarding the Service or the Website that comes to your attention. If Mozy concludes that there has been or is likely to be a breach of username or password security Mozy may (at its sole discretion): (a) (b) suspend your username(s) and passwords; and require you to change any or all of the username(s) and/or password(s) you use in connection with the Service. ACCEPTABLE USE AND CONDUCT You are responsible for your, your company s and/or your customers conduct, use of the Service and the consequences of any failure by you to comply with the terms and conditions of this Agreement. The Software and Service are made available to you, your company, and/or your customers for use in compliance with all applicable laws, rules and regulations. Such use must not infringe or violate third party rights. Without prejudice to the generality of the above, you, your company and/or your customers may BMI MSA v1.0 Page 4 of 9

5 not: (a) (b) (c) use the Software or Service to upload, store or transmit files that: (i) (ii) (iii) infringe the intellectual property or other rights of third parties (for example, illegal copies of music tracks, TV programming and / or movies); contain any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, racially, ethnically or otherwise objectionable material of any kind; contain viruses, "Trojan Horses", worms, cancelbots, corrupted files or other such similarly destructive features; otherwise in any way damage, disable or impair the operation of the Software or the Service, or attempt to do any of the same; or gain or attempt to gain unauthorised access to the Software or Service, or to networks connected to it, or to content stored or delivered through it, by any means, including by hacking, spoofing or seeking to circumvent or defeat any firewalls or other technological or other protections or security measures. Any unauthorised use of any Mozy computer system is a violation of this Agreement and applicable laws. Such violations may subject the unauthorised user and his or her agents to civil and criminal penalties. CONSENT TO COLLECT PERSONAL DATA, NON-PERSONALLY IDENTIFIABLE STATISTICAL INFORMATION AND PERFORMANCE METRICS; USE AND DELETION OF DATA When you use the Software and/or Service we may request and/or you may provide certain personal data. The Software and Service may also collect certain technical and statistical non-personally identifiable information that resides on your computer, including, without limitation, statistics relating to how often backups are started and completed, performance metrics relating to the Software, and configuration settings. The personal data and other information sent to/collected by Mozy will be used by Mozy in accordance with the Mozy Privacy Policy. When your account is terminated for any reason or you delete a particular device or machine associated with your account, you agree that we may delete any data that you have stored, which is associated with the relevant account and/or machine. USE OF SOFTWARE Subject to the terms and conditions of this Agreement, Mozy grants you a non-exclusive, licence for the term of this Agreement to install and execute copies of the Software (in executable code form only) on your own, your company's and/or your customers' 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 licence terms accompanying such code, and not the terms of this Section, will govern your use of such code. Any sublicences granted to your company and/or your customers must be on substantially similar terms to this Agreement save that any such sublicence must be non-transferable and non-sub licensable. The Software and its structure, organization, source code, and documentation contain valuable trade secrets of Mozy and its licensors, and accordingly you agree not to (and agree 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 who is not your customer, (2) modify, adapt, translate, or BMI MSA v1.0 Page 5 of 9

6 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 except that you may decompile the Software only to the extent permitted by law where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with the Software or with another program and such information is not readily available from Mozy or elsewhere, (4) extract portions of the Software's files for use in other applications, or (5) remove, obscure, or alter Mozy'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. INTELLECTUAL PROPERTY You acknowledge that Mozy or third parties own all right, title and interest in and to the Software and Service, portions thereof, or software or content provided through or in conjunction with the Software or Service, including without limitation all intellectual property rights. Except for the licence granted in this Section, all rights in and to the Software and Service are reserved, and no implied licenses are granted by Mozy. If you have comments on the Software or Service or ideas on how to improve them, please visit Please note that by doing so, you also grant Mozy a perpetual, royalty-free, irrevocable, transferable licence, with right of sublicense, to use and incorporate your ideas or comments into the Software or Service (or third party software, content, or services), and to otherwise exploit your ideas and comments, in each case without compensation. You agree that, upon such termination, you will destroy and permanently erase all copies of the Software and that your access rights to the Service will immediately terminate. The terms of the Sections entitled Consent to Collect Statistical Information and Performance Metrics; Use and Deletion of Data, Intellectual Property, Warranties, Indemnities and Disclaimers, Limitation of Liability, and Miscellaneous will survive expiration or termination. If this Agreement terminates, other than for your failure to comply, Mozy will use commercially reasonable efforts to make your Data available for you to download for a period of three (3) days. Mozy has no obligation to provide you with a copy of your Data and may remove and discard any Data. WARRANTIES, INDEMNITIES AND DISCLAIMERS Nothing in these terms and conditions excludes, restricts or affects your statutory rights if you are a consumer. The Service will be provided to you with reasonable skill and care. In this context, you specifically acknowledge and accept that the Service, as with other internet applications, is not capable of being 100% secure and Mozy does not guarantee the prevention or detection of any unauthorised attempts to access your data through the Service, the Website and/or our other systems and services. Mozy also cannot be held responsible for any loss or corruption of data or any unauthorised access of such data that takes place over third party systems and services used by you to transmit the data to or retrieve the data from Mozy. It is also entirely your responsibility to protect your computer from computer viruses by installing and updating adequate anti-virus software. Without prejudice to any other provision of this agreement, if a failure with the Website, the Software, the Service, and other content, information, material, software or other items or services made available or provided by Mozy through the website or the service ( Other Materials ) materially or permanently prevents you from accessing or retrieving any data that you have stored BMI MSA v1.0 Page 6 of 9

7 through the Service, then Mozy shall, at our option either (a) resolve the issue or (b) refund to you that proportion of the price you paid for the Service which is reasonably attributable to the data in question, taking into account its size relative to the total volume of data stored by you during the term of this agreement. To the maximum extent permitted under applicable law, such resolution or refund is Mozy s entire liability and your exclusive remedy relating to any such failure. TO THE FULLEST EXTENT PERMITTED BY LAW, MOZY AND ANY THIRD PARTY SOFTWARE AND SERVICE SUPPLIERS, EXCLUDE ALL OTHER EXPRESS OR IMPLIED TERMS AND CONDITIONS, CONDITIONS, WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH REGARD TO THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR OTHER MATERIALS INCLUDING WITHOUT LIMITATION THOSE AS TO SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES OR OTHER TERMS REGARDING THE AVAILABILITY, SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES. MOZY SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM THE ILLEGAL, INCORRECT OR INAPPROPRIATE USE OF THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR OTHER MATERIALS BY YOU OR ANYONE ELSE USING YOUR ACCOUNT. MOZY MAY REQUIRE YOU TO REIMBURSE US FOR ANY REASONABLE AND FORESEEABLE LOSSES, COSTS, EXPENSES, DAMAGES OR OTHER LIABILITY THAT MOZY INCURS AS A DIRECT RESULT OF THE MISUSE OF THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR ANY OTHER MATERIALS EITHER BY YOU OR BY SOMEONE USING YOUR ACCOUNT. FOR THE PURPOSE OF THIS PARAGRAPH, MISUSE SHALL BE CONSTRUED AS INCLUDING (I) ANY USE OF THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR OTHER MATERIALS THAT IS IN BREACH OF THIS AGREEMENT (INCLUDING THE PRIVACY POLICY); AND/OR (II) ANY USE OF THE WEBSITE, THE SOFTWARE, THE SERVICE AND/OR OTHER MATERIALS IN CONNECTION WITH WHICH MOZY IS REQUIRED TO DEFEND ITS OWN INTERESTS BEFORE A COURT, GOVERNMENT AGENCY, INDUSTRY REGULATOR, SELF-REGULATORY BODY OR SIMILAR MEMBERSHIP ORGANIZATION, OR DISPUTE RESOLUTION BODY AND/OR INCURS ANY LOSSES, COSTS, EXPENSES, DAMAGES OR OTHER LIABILITY IN CONNECTION WITH ANY THREATENED OR ACTUAL CIVIL, CRIMINAL OR ADMINISTRATIVE PROCEEDINGS. LIMITATION OF LIABILITY UNDER NO CIRCUMSTANCES SHALL MOZY, OR ITS SUPPLIERS, RESELLERS, RESELLERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MOZY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, SAVE IN THE CASE OF DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, OR WHERE WE HAVE ACTED FRAUDULENTLY, THE TOTAL AGGREGATE LIABILITY OF MOZY, AND ITS SUPPLIERS, RESELLERS, RESELLERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO MOZY FOR THE SOFTWARE OR SERVICES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING 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. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF BMI MSA v1.0 Page 7 of 9

8 LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE SOFTWARE AND SERVICE ARE NOT 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 MOZY WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE. EXCESSIVE USE POLICY In order to protect the experience of all users of the Service, Mozy prohibits excessive use of the Service, which means usage over a given period far exceeds the average level of usage by users of the Service generally. If Mozy determines that you have engaged in any excessive use, Mozy may offer you an alternative pricing plan or another Mozy product that will permit you to continue to use Mozy s services without interruption. If you fail to respond to any such offer, Mozy may take remedial action, which may include, but is not limited to, establishing limits on available storage and network capacity and suspension or termination of your account. In its sole discretion, Mozy may or may not notify you in advance of any such action. MISCELLANEOUS PROVISIONS Your ability to use the Website, the Software and/or the Service will depend on your geographical location, and whether you have appropriate technical equipment, including connectivity and bandwidth, available to you to download software and use the Service properly, as well as other factors. We recommend that you check, and you are responsible for checking, that you have all necessary equipment, internet connectivity and systems properly to download the Software and use the Website, the Software and/or the Service. You acknowledge and agree that the Software which is the subject of this Agreement may be controlled for export purposes. You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. If you are located in a country subject to embargo by the United States government, you are not entitled to use the Software or Service. This agreement will be governed by and construed in accordance with the laws of England, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The failure of Mozy to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect. This Agreement, which incorporates the Mozy Privacy Policy, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Mozy. All disputes arising out of this Agreement will be subject to English law, and the parties agree and submit to the personal and exclusive jurisdiction and venue of the English courts, except that nothing will prohibit Mozy from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights. BMI MSA v1.0 Page 8 of 9

9 You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of Mozy. Mozy may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning. BMI MSA v1.0 Page 9 of 9