Offsite Backup Terms and Conditions
The Terms and Conditions of Future Link Automated Offsite Backup Servcie THIS SUBSCRIBER AGREEMENT (this “Agreement”) is entered into as of the effective date on the Automated Offsite Backup Order Form the (“Effective Date”) between The Provider . (“The Provider “) a Illinois Corporation having offices at 164 E Chicago St., Elgin IL (“The Provider “) and Subscribers having offices at address provided on the Automated Online Backup Order Form (“Subscriber”). 1. DEFINITIONS In this Agreement, the following words and expressions shall have the following meanings:“Provider” means Future Link of Illinois dba“Subscriber” Means customer as identified on Automated Offsite Backup Order Form“Documentation” means documentation relating to the use of the Software.“Service” or “Service Plan” means one of the various online backup service plans listed in Exhibit A or on The Provider ’ website.“Software” means Future Link Automated Offsite Backup Software.“Base Storage Amount” means minimum backup storage plan.“Extra Block Size” means the increment of additional storage after Base Storage Amount is exceeded.“Local Copy” means a copy of the data which is being backed up offsite is to be stored locally to subscriber provided equipment.“Retention Period” means the period of time previous versions of a file or document are retained for. After the retention period the most recent version is retained.“Hourly Rate” is $135 per hour for time billed Monday through Friday From 7 AM to 6 PM CST. Evening and weekend time will be billed at 1.5 times the hourly rate. Travel time is billed on half (0.5) rate from door to door.2. LICENSE TO USE SOFTWARE. Upon the terms and conditions set out in this Agreement, the Provider hereby grants Subscriber a personal, non-exclusive, non-transferable license, without right of sub-license, to access and use the Software and Documentation. Prices are exclusive of all taxes, which are Subscriber’s sole responsibility. 3. PRICES. The price paid by Subscriber to Provider for Services shall be the Sum of the Base Plan Price, Additional Computer License fees, and Local Copy Costs; per month for the Base Storage Amount in GB as agreed upon on the Automated Offsite Backup Order Form. Over usage amount shall be billed in increments based on the “Extra Block Size” at the cost as listed as “Extra Block Cost” on the Automated Offsite Backup Order Form.4. RESTRICTIONS ON USE. Subscriber shall not, directly or indirectly: (i) create or enable the creation of derivative works, modifications, or adaptations of the Software or Documentation; (ii) decompile, reverse engineer or disassemble the Software; (iii) distribute or disclose the Software or Documentation to third parties; (iv) remove or modify any copyright, trademark, patent or other proprietary marking or restrictive legends placed on the Software or Documentation; (v) use any automatic device or program or manual process to monitor, copy or reproduce the Software or Documentation; (vi) modify the Software or Documentation or interfere with the proper operation of the Software or the use of the Software by third parties; or (vii) use the Software in violation of any applicable local, state, national or international law or regulation.5. SERVICES. The Provider shall establish an online storage and backup account to receive, via the Internet, and store Subscriber files (the “Subscriber Files”). Pursuant to the Subscribers’ instructions, Subscriber will be provided with an Encryption Key and Password for use in connection with the Services and for access to User Files. The Software shall be designed to permit access to Subscriber Files only with a valid Encryption Key and Password. The Provider shall have the right to block or suspend Subscriber’s access to the Software, or the Services as the Provider may, in its reasonable discretion, deem necessary to preserve the security and integrity of the Software and the Services, including, without limitation, upon any of the following circumstances: (i) full or partial failure of the Software or the Services, (ii) a breach in the security of the Software or the Services, or (iii) a breach by Subscriber of any of Subscriber’s obligations under this Agreement.6. The Provider will retain all revisions of a document or file during the retention period. If the Subscriber requires revision from prior to the retention period the provider will make a best effort to recover the requested data from previous backups. 7. FEES, TAXES AND PAYMENT. 6.1 Fees. In exchange for the License and the Services provided by the Provider under this Agreement, Subscriber shall pay the Provider in advance a monthly fee based on the service plan the Subscriber has selected. If the Provider does not receive written notice of a request for service termination by the Subscriber, the Subscriber acknowledges and understands that the Provider will continue to charge the Subscriber for the Services as long as the Subscribers account remains active regardless if the Services are used or not.6.2 Over usage Charges. Subscriber acknowledges that at the end of each billing period, if the Subscriber is using more than the allotted amount of storage based on the service plan the Subscriber has selected, then the Provider shall charge an additional fee for Subscriber’s over usage of the Services. Such fee shall be calculated based on incremental Bytes used multiplied by the implied price per Gigabyte for additional storage for the service plan the Subscriber selected.6.3 Restoration costs. The Subscriber may restore any or all files using the Automated Offsite Backup software over the internet at any time without any additional fee. In the instance the Subscriber needs a large amount of data, the subscriber may request a drive to be delivered or shipped to the subscriber. The Subscriber will be responsible for a Emergency Fee of $300 plus any shipping costs to produce and ship or deliver the data. Any labor by the Provider to assist in the recovery of said data either over the internet or shipped or delivered drive will be billed at the subscriber’s hourly rate.6.4 If the Subscriber requires restoration of data from outside the retention period the subscriber agrees to pay a Restoration Fee of $300 to the Provider to attempt to retrieve the requested data regardless if the provider can recover said data. The Restoration does not include the Emergency Fee if the data must be delivered or shipped to subscriber the Emergency fee will still apply. Any labor after the recovery is complete to assist the subscriber to restore the data to their systems will be billed hourly at their hourly rate. 6.5 Taxes. Subscriber is responsible for all sales, use and other taxes that are levied or imposed by reason of the License, Subscriber’s use of the Software or the Services, this Agreement, or the transactions contemplated herein, other than taxes imposed on the Providers net income.6.6 Payment by Check. For Subscribers who choose to pay for the services via check, Subscribers shall be receive an invoice in the mail approximately fifteen (15) days before the beginning of each monthly billing cycle, dated on the first day of the billing cycle. All payments shall be due upon receipt of invoice. After the first day of the billing cycle, all amounts due but unpaid shall accrue interest at the lesser of the rate of one and one-half percent (1-1/2%) per month or the maximum rate allowed by applicable law. 7 OWNERSHIP RIGHTS. Subscriber Files Property of the Subscriber. All Subscriber files are and shall remain the exclusive property of the Subscriber. Subscriber shall retain all right and title in and to the Subscriber files, including any proprietary rights in the Subscriber files. The Provider shall not transfer, sell, disclose, license, alter or otherwise use the Subscriber Files other than to provide the Services as contemplated by this Agreement. The Provider shall have the right to make copies of Subscriber files stored in connection with the Services; however, the Provider is not obligated to archive such copies and will utilize them only for backup purposes. At the time termination, the Subscriber’s access to Subscriber Account and any of Subscriber Files stored by the Service may be permanently terminated At the time termination, the Subscriber’s access to Subscriber Account and any of Subscriber Files stored by the Service may be permanently terminated 8 TERM AND TERMINATION. 8.1 Term. This Agreement shall commence on the Effective Date and continue in effect for one (1) year or term specified on Automated Offsite Backup Order Form thereafter unless terminated earlier as provided herein. Subscriber therefore agrees to pay the Provider for a minimum of twelve (12) months of service at the amount specified on the Automated Offsite Backup Order Form. 8.2 Termination by Subscriber. Subscriber may terminate this Agreement at any time after the initial one year term by providing The Provider with written notice of Subscriber’s intent to terminate use of the Service. At the time termination, the Subscriber’s access to Subscriber Account and any of Subscriber Files stored by the Service may be permanently terminated. The Provider shall not provide a refund for any unused portion of the Services paid in advance by Subscriber. 8.3 Termination by Provider for Breach. The Provider may, by written notice to Subscriber, terminate this Agreement, including all licenses granted hereunder, in the event of a default by Subscriber. Each of the following shall constitute a default: (i) failure by Subscriber to pay Provider in full for any fee(s) and/or charge(s) due to the provider if payment is not rendered within fifteen (15) days after the payment was due; (ii) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after written receipt of notice; (iii) any material breach of license grants, license restrictions, intellectual property rights, or confidentiality provisions provided herein effective immediately upon receipt of notice from Provider; or (iv) Subscriber becomes the subject of any bankruptcy, insolvency, or reorganization proceeding, or generally seeks relief from its debts, or becomes or is declared, by any court of competent jurisdiction, to be insolvent.8.4 Termination by Provider without Cause. The Provider may terminate this Agreement, including all licenses granted hereunder, without cause upon thirty (30) days written notice. Should Provider opt to terminate the Agreement without cause, The Provider agrees to allow Subscriber access to Subscriber Account and Subscriber Files for not less than 30 days following notification of termination. The Provider also agrees to provide a refund for any unused portion of the Services paid in advance by Subscriber.8.5 Termination by Subscriber without Cause. The Subscriber may terminate this Agreement, including all licenses granted hereunder, without cause upon thirty (30) days written notice if the account is current. Any remaining Fees and or Charges must be paid in full prior to the termination of the agreement. If account is not paid in full the Subscriber will continue to accrue monthly service fees until account is in good standing and there is a zero (0) balance. Should Subscriber opt to terminate the Agreement without cause, at the time termination, the Subscriber’s access to Subscriber Account and any of Subscriber Files stored by the Service may be permanently terminated. The Subscriber also agrees to provide a payment in full for remaining term of the agreement in addition to an early termination fee equal to one month’s service. 8.6 Disposition of data on termination. Subscriber understands that all subscriber files stored by provider under this agreement shall be deleted on or after seven (7) days from the termination date of this agreement (the “termination period”). Subscriber acknowledges that after the termination period, subscriber files will no longer be accessible to subscriber.8.7 Payment of Fees and Other Matters upon Termination. Upon the termination of this Agreement for any reason, Subscriber shall pay to the Provider any and all outstanding fees, charges and other amounts relating to the Software and the Services or otherwise which are due the Provider. All rights granted by the Provider under this Agreement shall cease upon the expiration or termination of this Agreement for any reason, and Subscriber shall immediately cease any use of the Software and/or the Services upon such termination. 9 Limitation of liability. In no event will any person or entity controlling, controlled by, or under common control with the Provider, or their respective officers, directors, employees, members, managers, attorneys, or agents (an “Provider entity”) be liable for any special, indirect, incidental, punitive, exemplary or consequential damages (including, but not limited to, lost profits, lost data or information, loss of use of the software or the services, business interruption, loss of business reputation or goodwill, costs of substitute services, or downtime costs) which subscriber or others may incur or experience directly or indirectly arising out of or relating to the software, the services, this agreement, or the expiration or termination of this agreement, even if the Provider has been advised of the possibility of such damages and notwithstanding any failure of essential purpose. Notwithstanding any other provision of this agreement, the aggregate liability of all the providers entities, on a combined basis, for damages for any cause whatsoever directly or indirectly relating to or arising out of this agreement or the software or the services, and regardless of the form of action, shall be limited to the amount paid by subscriber to the Provider in the six (6) full calendar months prior to the event giving rise to such damages. Some states do not allow the exclusion of incidental or consequential damages so this limitation may not apply to you. The foregoing provisions shall be enforceable to the maximum extent permitted by law.10 INDEMNIFICATION. Subscriber shall defend, hold harmless, and indemnify the Provider, and any party claiming by or through the Provider (the “the Providers Indemnified Parties”) from and against any claim, suit or proceeding brought by a third party or government agency against any the providers Indemnified Parties to the extent that it is based on (i) any claim arising out of Subscriber’s use of the Software, Documentation or the Services; (ii) any claim with respect to, or arising out of, the Subscriber Files, including, without limitation, any claim that such Subscriber Files infringe any patent, copyright, trademark, trade secret or other proprietary right or any contractual right or privacy right of any third party; or (iii) any claim arising out of any breach by Subscriber of any of its representations, warranties, or covenants hereunder; provided that Subscriber’s indemnification obligations hereunder shall not apply to the extent the claim suit or proceeding is based on the negligent or intentional conduct of any the Providers employee or party claiming by or through the Provider (the “Providers Indemnified Parties”).11 REPRESENTATIONS AND WARRANTIES.11.1 Subscriber Warranty. Subscriber represents and warrants that, at the time it provides any Subscriber Files to the provider and at all times during which such Subscriber Files are stored in connection with the Services, it is the owner of all such Subscriber Files, and all confidential information contained therein, and has full authority to provide the Subscriber Files to the Provider as contemplated by this Agreement. Subscriber represents and warrants that no Subscriber Files infringe upon or violate any patent, copyright, trademark, trade secret or other proprietary right or any contractual right or privacy right of any third party. Subscriber further represents and warrants that it is duly authorized to enter into this Agreement and make the commitments set forth herein.11.2 Warranty Disclaimers. Subscriber understands and agrees that their backups are their responsibility to insure all critical data is being backed up and to monitor and test the completeness of those backups. Subscriber understands and agrees that the software, the documentation, the services, any components thereof, and any other materials are provided strictly “as is.” The provider, and any third party service providers, specifically disclaim, without limitation, all warranties of any kind to subscriber and other third parties, whether express or implied, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose, any and all warranties of performance, any and all warranties of freedom from errors or defects, any and all warranties of non-infringement, and any and all warranties arising from a course of performance, a course of dealing or trade usage. The Provider makes no representation or warranty as to the timeliness, security, accuracy or completeness of the software, the services or any information contained in or accessed by or through the software or the documentation or the services, or as to the results to be attained by subscriber or any third party from access to or use of the software or the services. Subscriber hereby acknowledges that it has not relied upon any representations or warranties made by the Provider . Some states do not allow the exclusion of implied warranties so this limitation may not apply to you.11.3 Export Controls and Assurances. Subscriber understands that the Software and Documentation are subject to regulation by agencies of the United States Government as well as the laws and regulations of other applicable countries which prohibit export, importation or diversion of certain technological products or services to certain countries and individuals. Subscriber hereby specifically agrees to comply in all respects with such export, re-export, and/or import restrictions and not to export, or allow the re-export of the Software, Documentation, or any direct product thereof except with all necessary export licenses and approvals. Subscriber may not export/import or re-export/import the Licensed Software (or provide to a national of) countries in the US Government Country Group E:1 or E:2 without a license or license exception from the U.S. Department of Commerce nor otherwise violate any provisions of U.S. export laws including exporting to any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury’s list of Specially Designated Nations or the U.S. Commerce Department’s Table of Denial Orders. By using the Software, you are agreeing to the foregoing provisions and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list. 12 GENERAL 12.1 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void. However, either party may assign this Agreement to any person or entity acquiring all or substantially all of its assets or which is a successor by merger to a party, or with respect to the Provider, to any party acquiring the provider business and/or assets which are related to the Software or the Services. If the provider sells or assigns its business or assets which are related to the Software or the Services, any Subscriber Files in the Providers possession at that time shall be transferred to such acquirer in connection with such assignment, and Subscriber hereby consents to such transfer.12.2 Governing Law. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of Illinois. For all such matters, each party submits to the exclusive jurisdiction of the state and a federal court located in the State of Illinois, and waives any jurisdictional, venue, or inconvenient forum objections to such courts.12.3 Government Use. The Software is a “Commercial Item,” as that term is defined at 48 C.F.R 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212, 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-Subscribers (a) only as Commercial Items and (b) with only those rights as are granted to all other end-Subscribers pursuant to the terms and conditions herein. The Software, Documentation and Services have been developed at private expense and are sold commercially to the general public. They are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation. Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in our standard commercial license. Thus, the Software, Documentation and Services referenced herein, and provided by the Provider to any agency of the U. S. Government or U. S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations.12.4 Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of its respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a “Force Majeure Event”). Without limiting the generality of the foregoing, Force Majeure Events include: fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a party’s reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event shall extend the due dates or time schedules for reasonable periods of time as determined by the Provider in good faith.12.5 Entire Agreement. This Agreement and any schedules attached hereto constitute the entire Agreement of the parties with respect to the subject matter hereof and supersede any and all existing agreements relating to the subject matter hereof. To the extent there is any conflict among the terms of this Agreement and any attached schedules, the terms of this Agreement shall control.12.6 No Waiver. Neither this Agreement nor any provision hereof may be waived, modified, amended or terminated except by written agreement signed by the party affected by such waiver, modification, amendment, or termination. No failure on the part of any party to exercise and no delay in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right. 12.7 Cumulative Remedies. No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given in this Agreement or existing at law or in equity, by statute or otherwise.12.8 Notices. All notices and other communications required or permitted under this Agreement shall be in writing and sent by electronic mail (email), facsimile, express or overnight delivery service, or by certified mail, postage prepaid, return receipt requested, to the address of each party set forth above, or to an alternative address designated in writing by a party.. Notices shall be effective as of the date of receipt. Any changes to Terms and Conditions will be noted on Subscribers invoice with in thirty (30) days of the changes to the terms.12.9 Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision and this Agreement generally shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the parties as expressed in this Agreement.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. 13.1 Independent Contractors. This Agreement shall create an independent contractor relationship between the Provider and Subscriber. Neither party shall have any authority to act in any way as a representative of the other, or to bind the other to any third party, except as specifically set forth herein, and the parties shall not be deemed to be partners, joint ventures or the like by virtue of the provisions hereof.13.2 No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties. The parties intend that there shall be no third party beneficiaries under this Agreement, and that no person or entity, except the parties, shall have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.13.3 Headings. The headings preceding the various paragraphs and subparagraphs of this Agreement are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this Agreement or its terms.13.4 Survival. The obligations under Sections 4, 5, 6.5, 6.6, 7, 8, 9 and 10.2 (and this Section 10.14) shall survive the termination or expiration of this Agreement. In witness whereof, the Parties have caused this Agreement to be executed by their respective authorized representatives as of the Effective Date.