Offsite Data Backup Terms & Conditions
By accepting any Managed Backup Service from Storage Solutions Group, the Customer agrees to comply with all Storage Solutions Group's Terms and Conditions.
1. Term. The term of this Agreement will Month to Month. The Effective Date is the date of Client’s first invoice from Storage Solutions. Upon expiration of the Initial Term and each Renewal Term, this Agreement shall automatically renew for a term of “Month to Month” (“Renewal Terms”) unless either party provides written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Term.
2. Scope of Services. Subject to the terms and conditions contained herein, Storage Solutions agrees to provide the services described in the Service Schedule as set out on the cover page hereto (the “Services”) Such Service Schedule is incorporated herein by this reference. Client will cooperate with Storage Solutions in the performance of Client’s activities contemplated by this Agreement by, among other things, making available, as requested by Storage Solutions, such staff, information, management decisions and approvals so that Storage Solutions may fulfill its obligations under this Agreement.
3. Service Standards. Storage Solutions shall render the Services with promptness and diligence and shall perform the Services in a workmanlike manner.
4. Client Data
a. Safeguarding. Storage Solutions shall use its best efforts to maintain environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, loss, or alteration of information of Client that is provided to Storage Solutions in the performance of its obligations under this Agreement (“Client Data”).
b. Access to Data. Storage Solutions Group will activate and provide Client access to the Storage and Services and provide all other Services as specified herein or in Schedule A; provided, however, that Client acknowledges and agrees that actual access to the data may be delayed if Client’s technical environment has limited capacities available at time of performance. Client’s access will be limited to information and portions of datasets relating solely to Client. Storage Solutions Group shall have no obligation to provide any Storage or Services to Client hereunder, if Client has (a) deleted or modified the Client Software or any portion thereof, or the database tables or procedures created or maintained therein, or (b) failed to maintain the minimum technology standards required as noted in the installation notes of the Client Software
5. Client Responsibilities. Client will be responsible for ensuring the communication services and equipment used to connect to Storage Solutions are error free and reliable. Client agrees to provide a technical environment for the required access to and use of the Client Software and the Storage and Services hereunder, which environment meets the standard system requirements as determined by Storage Solutions Group. Client acknowledges that Storage Solutions Group is not responsible for obtaining or selling to Client the hardware, Internet access and any network connectivity or any stand-alone third-party software that may be required to meet minimum standard system requirements, or for providing maintenance or support thereof. Client will designate an on-site coordinator (the “Coordinator”) to coordinate day-to-day support with Storage Solutions representatives and agents. The Coordinator will be primarily responsible for addressing training, implementation, and support issues related to the Storage and Services. Client acknowledges and agrees that Client’s access to the Internet and Storage Solutions’ server hosting services relating to the Storage and Services are each provided by one or more third parties. As such, Storage Solutions 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 Client’s access to the Service. Client shall be responsible for all communication and other costs associated with providing and maintaining the connection between the Client site and Storage Solutions Group. Client shall furnish the email addresses of any employee that should be notified of planned maintenance down time. Notification of additions to the email list should be made to support@delphibackup.net.
6. Charges and Invoices. The Charges payable by Client for the Services are set forth on the front side in the “Service Fees” Section of this agreement.
a. Storage Levels. Storage Solutions will make available storage capacity in order to accommodate Client’s projected needs under this agreement. Client agrees to pay for the storage capacity consistent with storage levels as reported for any given monthly period during the Term. Storage Solutions shall invoice Client monthly for the Charges attributable to the immediately subsequent month in addition to any incidental fees incurred during the immediately preceding month. Any sum which is not paid within thirty (30) days from the due date of such invoice shall be subject to interest at the rate of one and one-half percent (1½%) per month, or the maximum rate permitted by law, whichever is less. If Storage Solutions does not receive payment when due, Storage Solutions, at its sole option, may interrupt, suspend or cease providing Services until such time as Client’s account, including all past due amounts plus applicable interest charges, if any, are paid in full or, if Storage Solutions determine in Storage Solutions’ sole discretion, Storage Solutions may terminate this Agreement.
7. Taxes. Any and all taxes, except taxes imposed on Storage Solutions’ income, imposed or assessed by reason of this Agreement or its performance, including but not limited to sales or use taxes, shall be paid by Client upon invoice by Storage Solutions. The payment of any such taxes shall be made in ac cordance with and subject to the provisions of Paragraph 6.
8. Termination.
a. Default. If either party commits a material breach of this Agreement, which breach is not cured within thirty (30) days after notice of the breach from the other party, then the non-breaching party may, by giving written notice to the breaching party, terminate this Agreement with respect to all or any part of the Services, in whole or in part, as of a date specified in the notice of termination.
b. Payment Default. In the event that Client fails to pay Charges on the due date under this Agreement and fails to cure such default within ten (10) days of written notice from Storage Solutions of the possibility of termination for failure to make such payment, Storage Solutions may, by written notice to Client, terminate this Agreement.
c. Termination for Convenience. Storage Solutions and Client may terminate this Agreement for convenience and without cause at any time by giving each other at least thirty (30) days prior written notice designating the termination date. Client further understands and agrees that certain factors beyond Storage Solutions’ control may prevent the Services from being established for Client. Though Storage Solutions will use commercially reasonable efforts to initiate Services, Storage Solutions reserves the right prior to the Effective Date to terminate this Agreement due to inability to provide Service.
d. Effect of Termination. Upon the termination or expiration of this Agreement due to reasons applicable to Sections 8(b) and/or 8(c) each party shall promptly return to the other all property, including all Confidential Information and other information, documents, manuals, equipment, software, hardware and other materials belonging to the other party. Should termination result from Section 8(b) or be initiated by Client under Section 8(c) Client will remain responsible for all outstanding Invoices and any Applicable current fees.
9. Confidential Information.
a. Confidential Information means any information or compilation of information that Client learns or develops during the term of his relationship with Storage Solutions that derives independent economic value from not being generally known, or readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use. It includes but is not limited to trade secrets and may relate to such matters as development or business affairs, studies and any other information which Storage Solutions treats as confidential or proprietary, including but not limited to information marked as such. Confidential Information specifically excludes information that Client learned or developed prior to Client’s relationship with Storage Solutions. Each party may receive from the other party Confidential Information. Each party agrees to maintain the other party’s Confidential Information in strict confidence. Without limiting the generality of the foregoing, each party agrees not to disclose or permit any other person or entity access to the other party’s Confidential Information except such disclosure or access shall be permitted to an employee, agent, representative or independent contractor of such party requiring access to the same in order to perform his or her employment or services. Each party shall insure that their employees, agents, representatives, and independent contractors are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Section 9. Further, each party agrees not to alter or remove any identification, copyright or other proprietary rights notice, which indicates the ownership of any part of such Confidential Information by the other party. A party shall undertake to immediately notify the other party in writing of all circumstances surrounding any possession, use or knowledge of Confidential Information by any person or entity other than those authorized by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict either party with respect to information or data identical or similar to that contained in the Confidential Information of the other party but which (i) that party rightfully possessed before it received such information from the other as evidenced by written documentation; (ii) subsequently becomes publicly available through no fault of that party; (iii) is subsequently furnished rightfully to that party by a third party without restrictions on use or disclosure; or (iv) is required to be disclosed by law, provided that the disclosing party will exercise reasonable efforts to notify the other party prior to disclosure.
b. Each party agrees that if either of them, their officers, employees or anyone obtaining access to the Confidential Information of the other party by, through or under them, breaches any provision of this Section 9, the non-breaching party shall be entitled to an accounting and repayment of all profits, compensation, commissions, remunerations and benefits which the breaching party, its officers or employees directly or indirectly realize or may realize as a result of or growing out of, or in connection with any such breach. In addition to, and not in limitation of the foregoing, in the event of any breach of this Section 9, the parties agree that the non-breaching party will suffer irreparable harm and that the total amount of monetary damages for any such injury to the non-breaching party arising from a violation of this Section 9 would be impossible to calculate and would therefore be an inadequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary and permanent injunctive relief against the breaching party, its officers or employees and such other rights and remedies to which the non-breaching party may be entitled to at law, in equity or under this Agreement for any violation of this Section 9.
10. Reselling of Services. Client and all of its employees understand that reselling the Services without Storage Solutions’ express written authorization is prohibited.
11. Warranties; Liabilities.
a. Storage Solutions warrants to Client that the Services will be performed in a workmanlike manner. Client’s sole and exclusive remedy for any breach of any warranty or representation not arising from Storage Solutions’ gross negligence or willful misconduct, shall be Storage Solutions’ provision of Services reasonably necessary to correct the error, problem or quality of performance resulting in the breach of warranty. STORAGE SOLUTIONS MAKES NO WARRANTY THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. STORAGE SOLUTIONS MAKES NO OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND STORAGE SOLUTIONS SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL STORAGE SOLUTIONS BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, EITHER IN CONTRACT OR TORT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO STORAGE SOLUTIONS IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY STORAGE SOLUTIONS.
b. If Storage Solutions shall be liable to Client as a result of any disputes, controversies or claims of any kind or nature arising under or in connection with this Agreement or the relationship created hereby (whether any such breaches, disputes, controversies or claims are based upon contract, tort (including negligence) or any other legal theory), all losses from all such breaches, disputes, controversies or claims are limited to actual, direct and out-of-pocket damages which are reasonably incurred by Client and the cumulative amount of all such losses recoverable against Storage Solutions for all such breaches, disputes, controversies and claims during the entire term, will not exceed, in the aggregate, an amount equal to the total amount of Storage Solutions’ Charges actually paid by Client under this Agreement for the six months immediately preceding the final determination of the amount of damages recoverable against Storage Solutions.
12. Indemnity. Client shall indemnify, defend and hold harmless Storage Solutions, its officers, directors, employees, agents, successors and assigns, from and against any and all losses and threatened losses arising out of or resulting from any claim, demand, charge, action, cause of action or other proceeding asserted by any third party against Storage Solutions, including, but not limited to, claims related to intellectual property infringement, which arises in connection with, or relates to (or are claimed to relate to): (i) the text, pictures, sound, graphics, video and other materials supplied by Client to Storage Solutions (“Content”), whether such materials are owned by Client or licensed for use by Client and the trademarks, service marks, trade names, logos and other commercial and product designations of Client (“Marks”) or (ii) Client’s breach of its representations and warranties under this Agreement.
13. Intellectual Property Rights. Storage Solutions shall be the sole and exclusive owner of all right, title and interest (including, without limitation, all patents, copyrights and other intellectual property rights) in and to hardware, software and systems (the “Storage Solutions System”) used by Storage Solutions to perform the Services. Client acknowledges that each of the elements of the Storage Solutions System are valuable trade secrets of Storage Solutions and constitute Confidential Information. Client makes no claim of ownership of any right, title or interest in any intellectual property, including but without limitation, all patents, copyrights and other intellectual property rights in and to the hardware, software and systems used by Storage Solutions.
14. Solicitation of Personnel. During the term of this Agreement and for a period of one (1) year thereafter, Client agrees not to recruit, solicit, employ or utilize for Client or others, Storage Solutions’ employees, consultants or subcontractors.
15. Force Majeure. Storage Solutions shall not be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquakes, elements of nature or other acts of God; (b) any outbreak or escalation of hostilities, war, riots or civil disorders in any country; or (c) any act or omission of Client or any governmental authority. In any such event, Storage Solutions will be excused from any further performance or observance of the obligations so affected only for as long as such circumstances prevail and Storage Solutions continues to use commercially reasonable efforts to recommence performance as soon as practicable.
16. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the matters covered herein. No other agreements, representations, warranties or other matters, oral or written, purportedly agreed to or represented by or on behalf of Storage Solutions by any of its employees or agents, or contained in any sales materials or brochures, shall be deemed to bind the parties with respect to the subject matter hereof.
17. Relationship of Parties. In furnishing the Services to Client, Storage Solutions is acting only as an independent contractor. This Agreement does not create a joint employer, shared employee or leased employee relationship with respect to any employees of either party. Except as otherwise expressly provided in this Agreement, Storage Solutions has the sole right to supervise, manage, contract, direct, procure, provide or cause to be provided, all Services.
18. Notices. Any notice provided pursuant to this Agreement shall be in writing to the parties at the addresses set forth in the Service Schedule and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) three (3) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested or (iii) one (1) day after deposit with a nationally-recognized overnight courier, specifying overnight priority delivery. Either party may change its address for purposes of this Agreement at any time by giving written notice of such change to the other party.
19. Assignment. Except as otherwise provided herein, the rights and obligations of Client under this Agreement are personal and are not assignable, either voluntarily or by operation of law, without the prior written consent of Storage Solutions. Subject to the foregoing, all provisions contained in this Agreement shall extend to and be binding upon the parties or their respective successors or assigns.
20. Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the parties and shall not confer any rights upon any other person or entity, including but not limited to any customers or agents of Client.
21. Amendment and Modification; Severability; No Waiver. This Agreement may be amended or modified only by a written instrument duly executed by the parties. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of Storage Solutions at any time or times to require performance of any provision of this Agreement shall not affect its right to enforce such provision at a later time.
22. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Nebraska without giving effect to its choice-of-law rules. Any action or proceeding relating to the subject matter hereof shall be brought before the state or federal courts situated in Douglas County, Nebraska, and each party consents to jurisdiction and venue before such courts.
23. Attorneys Fees. In the event that an action is brought by Storage Solutions to enforce this Agreement, in addition to any other remedy available Storage Solutions, Client shall reimburse Storage Solutions for reasonable attorney’s fees and expenses of any kind or nature incurred in connection herewith.
24. Certain Construction Rules. To the extent that the provisions of this Agreement and of the Service Schedule are in any respect inconsistent, the provisions of this Agreement shall govern and control. The Section headings contained in this Agreement are for convenience only and shall in no way define, limit or extend the scope or intent of any provision of this Agreement.
25. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall constitute one instrument binding on the parties.
26. Arbitration. Should the parties hereto be unable to amicably resolve between themselves any disagreements related to or arising from any one or more of the provisions of this Agreement, which does not involve injunctive or equitable relief, both parties shall submit such disagreement to arbitration under the Commercial Rules of the American Arbitration Association in Omaha, Nebraska, with any hearing to be held in Omaha, Nebraska. Neither party shall have the right to further appeal or redress an arbitration award in any other court or tribunal except for any of the grounds set forth in the Uniform Arbitration Act as adopted in Nebraska or to vacate or modify the award or to obtain execution of the judgment rendered by the American Arbitration Association.
27. Survival. The provisions of Sections 9, 12, 13, 14, 22, 23 & 26 shall survive expiration or termination of this Agreement
Schedule A
1. Storage System & Client Data Availability.
a. The HA Solutions / Storage Solutions Group backup and recovery services will be available for use by Client 99.95 % of the time not including pre-planned down times and interruptions in service outside the control of HA Solutions / Storage Solutions Group. HA Solutions / Storage Solutions Group will notify Client at least five (5) calendar days prior to a planned maintenance down time. Notification of planned down time will be made via email to the email addresses provided by the Client
b. Restoration of client data will begin within 4 hours of notification to HA Solutions / Storage Solutions Group and will be accomplished via most reasonable means. Restoration procedure determined by bandwidth, size of file set to be restored and client need.
c. Standard Retention Policy
Full or Synthetic Full: Monthly
Incremental: Daily
**Purge Notes - Two (2) individual full backups will be available upon the 31st day of service. These will include the previous and current calendar months. Data will be purged on a rolling two (2) month cycle. Incremental backups will be purged on a rolling 28-day cycle
2. Client Site Notification and Response. In the case where the Client notifies HA Solutions / Storage Solutions Group of a technical problem at their site, HA Solutions / Storage Solutions Group’s response will be within two (2) hours if the notice is made by email (preferably) or phone, to the HA Solutions / Storage Solutions Group Call Center. After hour calls not designated to be an emergency are not included in the response time and will be addressed the following business day. HA Solutions / Storage Solutions Group warrants that if the problem shows no forward progress towards a resolution in eight (8) business hours of the ticket start time, the trouble ticket will be escalated to involve Level 2 support for a resolution.
3. Remedies:
a. Storage System Availability - If the Service Availability falls below the level stipulated in paragraph a, above, on a monthly basis, then the Client will be issued a credit for that month’s pro-rata deficiency.
b. Client Site Notice and Response - If HA Solutions / Storage Solutions Group fails to meet the response times in paragraph b, above, for technical problems which prevents any use of the Services the Client will be issued a credit against the current month’s invoice of: i) 1/30 of the invoice for the first occurrence in the month, ii) 2/30 of the invoice for the second occurrence in the month, and iii) a maximum of 3/30 of the invoice for any additional occurrences in the month.
4. Exclusions: There will be no credits issued in the event: a) failure of the system is due to items provided by Client, such as connectivity or Client owned hardware or software, or b) other breach of the Services Agreement by Client, or c) negligence or willful acts and omissions by Client or its employees or agents