CLOUD DATA STORAGE CDS APPLIANCE BASED SERVICE AGREEMENT

Transcription

1 CLOUD DATA STORAGE CDS APPLIANCE BASED SERVICE AGREEMENT This CDS Appliance Based Service Agreement (the Agreement ) is made by and between CDS Office Technologies with offices at 612 S. Dirksen Parkway, Springfield, IL ( CDS ) and ( Customer ) with offices at:. This Agreement covers provision by CDS data protection, backup and recovery services to the Customer as defined below and incorporates the terms and conditions attached hereto. DATE OF AGREEMENT: Unless this Agreement is executed and returned to CDS within thirty (30) days of the above date, this offer for services will expire. TERM OF AGREEMENT: Annual - with automatic monthly renewal unless terminated in accordance with the terms and conditions. One Year: Two Year: Three Year: Prepaid with automatic annual renewal of year unless terminated in accordance with the terms and conditions. DATA PROTECTION DEVICE: Form Factor Tower Rackmount Service Package Backup Protect Fortify Fortify + Cloud Continuity Capacity 250GB 500GB 1TB 2TB 4TB 6TB 8 TB 10TB 14TB 18TB 20TB OFFSITE STORAGE ALLOWANCE: Includes GB offsite storage, additional offsite is $ /GB ADDITIONAL ONE TIME SERVICES: Shipping 1

2 FEES: Interim Service Fee: $ (pro-rated service fee from Effective Date to first full month)* Monthly Subscription Fee: $ Freight Charges: Prepay & Bill Amount Due at Inception: $ (Monthly Fee + any interim service fee + Freight) For purposes of billing, the Effective Date is the date this Agreement is signed by the Customer plus five (5) days. In addition to the charges outlined above, Customer agrees to pay for shipping of the device and a monthly Overage Fee representing the amount of storage used by the Customer over and above the Offsite Storage Allowance provided for above. THE AGREEMENT, INCLUDING THE ATTACHED TERMS AND CONDITIONS, CONSTITUTES THE COMPLETE AND ECLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS, AGREEMENTS AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN. IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF ANY OTHER PURCHASE OR SALES DOCUMENT AND THE TERMS AND CONDITIONS OF THE AGREEMENT, THE AGREEMENT SHALL CONTROL. THE AGREEMENT MAY BE MODIFIED, REPLACED OR RESCINDED ONLY IN A WRITING SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF EACH PARTY. CDS OFFICE TECHNOLOGIES 612 S. Dirksen Pkwy Customer Springfield, IL Address City State Zip CDS Signature Name: Title: Customer Signature Name: Title:. 2

3 ATTACHMENT 1 CDS APPLIANCE BASED SERVICE TERMS AND CONDITIONS These Terms and Conditions shall apply to the CDS Appliance Based Service Agreement between CDS and Customer to provide the Service identified herein and in the Agreement (the CDS Service ). The Agreement and this Attachment are hereinafter referred to as the Agreement. 1. Provision of Service. 1.1 Subject to the terms and conditions of the Agreement, CDS hereby agrees to provide to Customer during the term of this Agreement the CDS Service, consisting of off-site automated data protection, backup, and recovery services described in the Agreement in connection with Customer s use of the Data Protection Device and Software. CDS will provide access to the Customer s backup data for restoration and recovery purposes on a continuous basis. CDS reserves the right to physically ship the backup data on tape or other media to the Customer s site. 1.2 CDS agrees to hold confidential all of Customer s data in its possession exercising the same degree of care that a company utilizing industry accepted business practices would exercise with similar data of its own. CDS will implement reasonable security and environmental precautions to promote an appropriate level of system availability and data protection and recovery. 2. Provision of Data Protection Device. 2.1 Subject to the terms and conditions of the Agreement, CDS hereby agrees to provide to Customer the Data Protection Device identified in the Agreement, solely for Customer s own internal business purposes and subject to the restrictions herein. The Data Protection Device is embedded with proprietary software subject to the terms and conditions of this Agreement, CDS hereby grants to Customer a non-exclusive, non-transferable license to use the CDS Software as installed on the Data Protection Device and solely for Customer s internal business purposes and in accordance with the Agreement. 2.2 Customer shall not, and shall not have others, modify, customize, reverse engineer, reverse assemble or reverse compile the Data Protection Device or Software or any part thereof. In the event that Customer believes that the Data Protection Device or Software is not functioning according to standard written specifications, Customer shall contact CDS immediately and inform them of the problem. 2.3 Customer acknowledges and agrees that it is acquiring only the right to use the Data Protection Device and the CDS Software during the term of the Agreement. You shall not retain rights of ownership of the Data Protection Device or the Software, all copyrights and other intellectual property rights vested in the Data Protection Device and Software, and all modifications to the Data Protection Device and Software (including derivative works), and changes to the Data Protection Device and Software made by CDS or its affiliates under the Agreement. In no event shall title to all or any part of the Data Protection Device pass to Customer. Customer agrees that, as between the parties, the Data Protection Device and Software (in whole or part) shall remain the exclusive property of CDS technology partner and may not be copied or used except as expressly authorized by this Agreement. Any rights not expressly granted to the Customer under the Agreement are retained by CDS technology partner. 3. Customer Obligations. 3.1 Customer will perform regular backups using the Software which is embedded in the Data Protection Device to hardware that CDS maintains at one of CDS Technology partners data centers. Customer acknowledges that CDS provision of the CDS Service does not include the requirement or option to purchase the Data Protection Device or any other hardware utilized in connection with the service, during or after the termination of the Agreement. Customer will report any errors in executing such backups promptly by phone or to CDS. Customer will arrange for and maintain communication services used to connect to the Data Center. Customer is responsible for any communication costs associated with the connection between Customer s site and the Data Center. Customer shall implement reasonable security and environmental precaustions to ensure a high level of system availability and data protection and recovery. 3.2 Customer covenants and agrees that Customer shall not place any data in the Datacenter that (i) infringes the intellectual property rights or privacy rights of any third party, (ii) violates any law, statute, ordinance or regulation, (iii) is defamatory, libelous, unlawfully threatening or harassing, (iv) is obscene, or contains any viruses, Trojan horses, worms, time bombs, cancel bots or other programming routines that are intended to or have the effect of damaging, detrimentally interfering with, surreptitiously intercepting or expropriating any system, data or personal information. Customer shall defend, indemnify and hold CDS and its technology partners harmless against any third party claim, suit or proceeding alleging any breach of the covenants contained in this Section. 4. Payment Terms. 4.1 Customer shall pay to CDS the amount described in the Agreement on the Effective Date or as set forth in the Agreement. Customer shall pay any fees for overage usage or additional services it orders, beyond those ordered at the time this Agreement is entered into, within thirty (30) days of the applicable CDS invoice date. 4.2 CDS reserves the right to charge a service fee of 1.5% per month on late payments. 4.3 Customer shall pay all fees and charges set forth in the Agreement exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the CDS Service in countries 3

4 other than the United States. Any such taxes, duties, or fees shall be added to the CDS invoice or paid directly by Customer. 5. Warranty Disclaimer and Limitation of Liability. 5.1 Customer acknowledges that it is responsible for determining whether the CDS Service is appropriate for Customer s data protection needs. CDS sole warranty is that the CDS Service shall substantially comply with any standard specifications provided in writing by CDS. Customer's sole and exclusive remedy, and CDS entire liability under this Agreement shall be limited to the following: (i) CDS shall use reasonable commercial efforts to correct any substantial non-compliance with the above warranty; (ii) if such non-compliance cannot be corrected after using commercially reasonable efforts, Customer may terminate the Agreement and receive a refund of any amounts paid since the time of the non-compliance. 5.2 ECEPT FOR THE LIMITED WARRANTY IN SECTION 5.1 ABOVE, CDS MAKES NO WARRANTIES, EPRESS, IMPLIED OR STATUTORY, REGARDING THE CDS SERVICE, THE DATA PROTECTION DEVICE OR THE CDS SOFTWARE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFIRNGEMENT. CUSTOMER ACKNOWLEDGES IT HAS RELIED ON NO WARRANTIES WITH RESPECT TO THE CDS SERVICE, THE DATA PROTECTION DEVICE OR THE CDS SOFTWARE IN ENTERING INTO THIS AGREEMENT. 5.3 IN NO EVENT WILL CDS OR ITS TECHNOLOGY PARTNERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE AGREEMENT. IN NO EVENT SHALL CDS S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT ECEED THE AMOUNT OF FEES AND AMOUNTS PAID BY CUSTOMER UNDER THE AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAID UNDER THE AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT CDS WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. 5.4 Notwithstanding the Warranty Disclaimer and Limitation of Liability outlined above, the Customer will be allowed to return the appliance and discontinue service at no charge at any time for any reason within thirty (30) days from receipt of unit. 6. Term and Termination. 6.1 The Agreement shall have the term set forth in the first page of the Agreement. The Agreement shall automatically renew at CDS S then current rates for the applicable period, unless Customer provides CDS within 30 days written notice of termination Either Party may terminate this Agreement (i) upon the occurrence of a material breach of a material provision of this Agreement (other than a failure to pay) if such breach is not cured within 30 days of written notice; (ii) upon the other party s filing a petition in bankruptcy, being adjudicated bankrupt, not dismissing a petition in bankruptcy that is filed against it within 30 days of filing, the other party becoming insolvent, the other party making an assignment for benefit of creditors, or a receive is appointed for the other party In the event of a failure by Customer to comply with its payment obligations, CDS may terminate this Agreement and the licenses granted hereunder upon 5 days notice of breach and Customer s failure to pay all amounts due and outstanding. 6.2 Upon termination, Customer shall promptly pay any amounts due and owing to CDS, return the Data Protection Device and the Software as instructed by CDS and at CDS expense, and if Software has been installed by CDS on a computer device other than the Data Protection Device, de-install the Software and at CDS Technology Partners sole discretion, either destroy or return all Software copies and documentation. Customer shall certify to CDS in writing within five (5) business days of a termination notice that Customer has complied with this Subsection 6.2 and that no CDS Software is being used or retained on any computer or storage device. 6.3 Customer agrees that if Customer were to fail to timely return the Data Protection Device and Software, the resulting damages to CDS would be difficult to ascertain. Customer therefore agrees that Customer shall pay as liquidated damages to CDS without further proof of damages, the amount equal to 6 months of fees payable under this Agreement if Customer fails to return the Data Protection Device and CDS Software within thirty days of termination of this Agreement. Regardless of whether Customer pays such liquidated damages, CDS Technology Partners shall maintain all rights of ownership with regard to the Data Protection Device and the Software and shall be entitled to seek injunctive relief provided under Section 7.3 without the need to post a bond. 6.4 The provisions of Sections 1.2, 2, 3, 4, 5, 6 and 7 shall survive the termination of this Agreement. 7. General. 7.1 Neither the Agreement nor any license hereunder may be assigned (whether by operation of law or otherwise) by Customer without CDS prior written consent. CDS may assign this Agreement without the consent of Customer. 7.2 Customer agrees that during the term of this Agreement and for a period of two years after its expiration or termination Customer will not solicit or encourage any CDS employee or consultant to leave the employ of CDS. 7.3 Except as provided in Section 5, the parties rights and remedies under the Agreement are cumulative. CDS shall be entitled to seek injunctive relief (without the requirement of posting a bond) with regard to any breach by 4

5 Customer (other than a breach for failure to pay). 7.4 The Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. The Agreement may be modified only in writing signed by both parties. Waiver of any breach or failure to enforce any term of the Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 7.5 Neither party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Customer s obligation to make payments under the Agreement) when such delay is due to the elements, acts of God or other causes beyond its reasonable control. 7.6 The Data Protection Device and the Software are subject to the customs and export control laws and regulations of the United States and may be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. If the Data Protection Device Software is licensed for use outside of the United States the Customer agrees to comply fully with all relevant export laws and regulations of the United States and the country or territory in which the Software is used, to assure that neither the Software, nor any direct product thereof, are exported, directly or indirectly, in violation of such laws. Under United States law, the Data Protection Device and Software may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction. 7.7 If Customer is a branch or agency of the United States Government, the following provision shall apply. As defined in FAR section 2.101, DFAR section (a)(1) and DFAR section (a)(5) or otherwise, all Software and accompanying documentation provided by CDS are commercial items, commercial computer software and/or commercial computer software documentation. Consistent with DFAR section and FAR section , any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the US. Government shall be governed solely by the terms of the Agreement and shall be prohibited except to the extent expressly permitted by the terms of the Agreement. 7.8 Except as provided below, any and all disputes arising from or relating to the subject matter of this Agreement or any interpretation of the Agreement shall be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association or Judicial Arbitration and Mediation Services. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys fees) shall be made a part of the arbitrator s award. The arbitration will take place in San Francisco, California. Notwithstanding the foregoing, the parties retain the right to obtain injunctive relief from a court specified in Section Any entity licensing computer software to CDS or its subsidiaries is hereby specified as a third party beneficiary of the Agreement. CDS will be responsible for all third party beneficiary reporting The agreement shall be governed by and construed under the laws of the State of California excluding its conflict of law rules. It shall not be governed by the United Nations Convention on the International Sale of Goods, the application of which is expressly excluded. The exclusive jurisdiction and venue of any action with respect to this agreement shall be the Superior Court of San Francisco County or the United States District Court for the Northern District of California and each party submits itself to the jurisdiction of such courts. 5