877-738-0209

DIGITAL MASTER SERVICES AGREEMENT

This Digital Master Services Agreement ("Agreement") by and between BackUp Solutions, Inc., having principal offices at 307 E. Chapman Ave, Orange, CA, 92866 ("BackUp Solutions") and the customer identified below ("Customer"). BackUp Solutions and Customer may be collectively referred to as "Parties" and/or individually as "Party."
CUSTOMER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PROPOSALS OR PRIOR OR CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN INCLUDING BUT NOT LIMITED TO ANY TERMS CONTAINED IN CUSTOMER'S PURCHASE ORDER.
In consideration of the promises and covenants contained herein the Parties agree to the following:
1. Definitions.
"Agent" means the software that will enable Customer's data to be transmitted to and retrieved from BackUp Solutions' servers for the Service(s) described in the applicable Schedule(s).
"Authorized Contact(s)" means named individuals trained in the use of Services designation by Customer as having security authorization to contact BackUp Solutions' Customer Support Department to report problems and seek assistance in the use of the Services.
"Customer" means the legal entity as submitted to us on the free trial or sign up forms from our website, or who has paid fees to use our service(s), or as specified on the Schedule(s) if any, which shall include any subsidiary, division and/or affiliate in which Customer has a fifty (50%) percent or greater equity interest and/or control of a majority of the voting rights.
"Documentation" means the applicable installation guides, service descriptions, technical specifications, on-line help files, and user manuals for the Services provided by BackUp Solutions. "Equipment" means any hardware device(s) described in the applicable Schedule(s).
"Gigabyte" and/or "GB" mean one thousand and twenty- four (1,024) Megabytes.
"Major Enhancement(s)" means any modification or addition that provides utility and/or efficiency alterations to the Agent. BackUp Solutions, in its sole discretion, shall designate Major Enhancements by indicating a change in the second digit of the software release number {e.g. the first Major Enhancement 1.0.0 shall be designated 1.1.0}. Major Enhancements are provided to Customer, free of charge, so long as Customer has not lapsed in payment of the Fees due hereunder.
"Minor Enhancement(s)" means any modification or addition that provides error corrections to the Agent. BackUp Solutions, in its sole discretion, shall designate Minor Enhancements by indicating a change in the third digit of the software release number {e.g. the first Minor Enhancement 1.0.0 shall be designated 1.0.1}. Minor Enhancements are provided to Customer, free of charge, so long as Customer has not lapsed in payment of the Fees due hereunder.
"Module(s)" means a dependant software program that works with the Agent but provides separate and optional functionality {e.g. Email Optimizer 1.0.0 is a module sold with 1.0.0}, described herein, which BackUp Solutions may offer to Customer for an additional charge as reflected in a schedule.
"New Release(s)" means a stand-alone software program, which provides new functionality and/or interoperability to the Agent. BackUp Solutions shall designate a New Release by indicating a change in the first digit of the software release number {e.g. the first New Release to 1.0.0 shall be designated 2.0.0} New Releases are provided to Customer, free of charge, so long as such Customer has not lapsed in payment of the Fees due hereunder. BackUp Solutions will continue to maintain and support the immediate prior release of the software for at least one year after the New Release is made generally available.
"Personal Data" means, generally, information relating to an identified or identifiable natural person, as defined by applicable privacy or data protections laws. Examples include address, credit card number, bank statements, criminal record, etc.
"Professional Services" means installation and/or training services performed by BackUp Solutions' personnel and/or agents for the benefit of Customer.
"Protected Data" means the data under protection by the Service as selected by Customer at any time. Protected Data may include Personal Data.
"Protected Device(s)" means personal computer(s) ("PC") and Apple Macintosh computer(s) ("Mac") licensed to use the Service to store and protect data.
"Protected Server(s)" means any server designated by Customer under this Agreement as being assigned to the Service.
"Service(s)" means collectively or individually, the applicable subscription or managed services and/or Professional Services as further described in the Schedule(s) and any Updates and/or Upgrades necessary to provide Services as further described herein.
"Updates" and/or "Upgrades" means collectively all error correction(s), Minor Enhancement(s), Major Enhancement(s) and New Releases; however, it specifically excludes all Module(s).
2. License Grant & Restrictions.
2.1 In General.
Customer understands that the LiveVault, Connected and Connected MX services, software and data centers are owned and managed by Hewlett Packard (“HP”) and that BackUp Solutions, Inc. is a Managed Service Provider of HP through which these services may be purchased. The Agent, Equipment and Documentation are licensed, not sold, to Customer by BackUp Solutions for use only under the terms of this Agreement. BackUp Solutions retains all right, title and interest to the Agent, Equipment and Documentation, and reserves all rights not expressly granted to Customer. Effective upon delivery, Customer will bear the risk of and shall be responsible for any loss, theft or destruction of or damage to the Equipment, except for normal wear and tear. The Equipment shall remain the property of BackUp Solutions and will not become a fixture or realty and shall be returned to BackUp Solutions within thirty (30) days following the expiration or termination of this Agreement.
2.2 License Grant.
BackUp Solutions hereby grants to Customer and Customer accepts, a nonexclusive, non-transferable license for the term of this Agreement to: (i) install the Agent in object code/executable form on the quantity and type of Customer's Protected Devices and/or Protected Servers equal to the number and type of Agents and/or Gigabytes, ordered by Customer in the applicable Schedule(s); (ii) use said Agent(s) only for Customer's internal business needs; (iii) use the Documentation to support the use of the Services; and (iv) make a commercially reasonable number of copies of the Agent in object-code/executable form only, for nonproductive backup purposes; provided, however, that Customer reproduces and includes all of BackUp Solutions' copyright notices and proprietary legends on each such copy. At no time shall Customer sublicense, sell, rent, lease transfer distribute or otherwise commercially exploit or make the Agent or Services available to any third-party. Customer and all of its users for whom licenses are purchased hereunder shall be bound by and comply with this Agreement, and Customer is solely responsible for all activities of its users and for the accuracy, integrity, legality, reliability, and appropriateness of all Protected Data.
2.3 Restrictions.
Customer specifically agrees to limit its use of the Agent, Equipment, Documentation and/or Services as expressly authorized in this Agreement. Notwithstanding the foregoing, Customer specifically agrees not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Agent or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Agent; (iii) use the Agent or Equipment to knowingly (a) infringe on the intellectual property rights of any third-party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) vault defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (d) vault obscene, pornographic or indecent data in violation of applicable law; or (e) propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (iv) use the Agent or Equipment in any application that may involve risks of death, personal injury, property damage or environmental damage, or in any life support applications, devices or systems; (v) use the Service in violation of any applicable laws, wherever such use occurs, and not use or require BackUp Solutions or its service providers to use any Protected Data obtained via the Services for any unlawful purpose; (vi) use the number per type of licenses in excess of the Agents allocated to Customer as specified in the applicable Schedule(s); (vii) gain or attempt to gain unpermitted access by any means to any BackUp Solutions computer system, network, or database, and/or (viii) file copyright or patent applications that include the Agent or any portion thereof.
2.4 Password Protection.
Customer shall be responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, "Passwords") provided to Customer for the purpose of accessing and using the Service(s). In the event that Customer makes such Passwords available to any third-party, Customer shall be liable for all actions taken by such third-party in connection with the Services. Customer shall not disclose or make available Customer's Passwords other than to Customer's authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and will notify BackUp Solutions promptly of any such unauthorized use.
2.5 Termination of License and Suspension of Services.
BackUp Solutions may terminate and/or suspend Customer's license and/or suspend, terminate or limit any of Customer's use of the Service(s) without liability, with or without notice, based on BackUp Solutions' reasonable belief that: (i) the Service(s) is being used by Customer in violation of any applicable federal, state, or local law, ordinance or regulation; (ii) the Service(s) are being used in breach of Sections 2.3 and/or 2.4 above or otherwise in a potentially harmful or unlawful manner; (iii) the use of the Service(s) adversely affects BackUp Solutions' equipment, security network infrastructure or its service to others; (iv) a court or other governmental authority having jurisdiction issues an order prohibiting BackUp Solutions from furnishing the Service(s) to Customer; or (v) Customer fails to pay undisputed charges for Service(s) after being given notice; provided storage Fees will continue to accrue for Customer's Protected Data notwithstanding any suspension and Customer will remain liable for all Fees. In the event Services are suspended, BackUp Solutions will use commercially reasonable efforts to inform Customer and will work with Customer to resolve such issues and re-instate the Services.
3. Maintenance and Support Services.
3.1 Error Correction.
BackUp Solutions shall use commercially reasonable efforts to correct verifiable and reproducible errors when properly reported to BackUp Solutions. The error correction(s), when completed, may be provided in the form of a "temporary fix," which shall consist of sufficient programming and operating instructions to implement such error correction(s).
3.2 Customer and Technical Support.
BackUp Solutions shall maintain a customer service hotline for the Authorized Contact(s) to report problems and seek assistance in the use of the Service and/or Agent. BackUp Solutions shall maintain an email response system that permits Customer to report problems and seek assistance in use of the Service(s) and/or Agent via email.
4. Prices and Payment.
4.1 Prices.
Prices for backup services and/or equipment shall commence after any trial period has ended and the customer wishes to continue with our service, and shall be billed at the rates in effect at such time or at the rates set forth in the applicable Schedule(s) ("Fees"), if any.. No refunds shall be made except as provided in Section 6.1 or Section 6.2 under "Warranties". Customer shall be liable for payment of all taxes (including but not limited to all taxes, assessments, duties, tariffs, imposts, permits sales, use, excise, import, export, value-added, or other similar tax, duty or fee) that are levied upon and related to the performance of obligations or exercise of its rights under this Agreement. BackUp Solutions may be required to collect and remit taxes from Customer, unless Customer provides BackUp Solutions with a valid tax exemption certificate. BackUp Solutions will invoice Customer for all such taxes based upon this Agreement or on Services and/or Equipment provided hereunder. In no event will either Party be responsible for any taxes levied against the other Party's net income.
4.2 File Selection
It is the customer’s responsibility to create backup policies which protect their computers and files.  Customer may request assistance from BackUp Solutions to create backup rules but it is the customer’s responsibility to ensure that these selections are appropriate and complete.  For all plans which are priced on a per GB basis, billing will be in arrears based on actual usage.  Customer understands that they will be billed as defined in the section 4.1 based on the largest size of their protected data each month.
4.3 Payment.
All invoices shall be due and payable in US Dollars within thirty (30) calendar days after invoice date. Invoicing shall occur via email. BackUp Solutions may impose late charges on overdue payments at a rate equal to the lesser of one and a half percent (1.5%) per month or the highest rate permitted by law, calculated from the date payment was due until the date payment is made and all expenses incurred in collection, including reasonable attorneys' fees. BackUp Solutions may decline to make any shipments or provide Services if, in BackUp Solutions' reasonable opinion, circumstances exist which raise doubt as to Customer's ability or willingness to pay as provided herein. Upon default by Customer, BackUp Solutions shall have all other rights and remedies as may be provided by law.
5. Intellectual Property & Protections.
BackUp Solutions or its suppliers are the sole and exclusive owner of all right, title, and interest in and to the Agent (excluding any open source third party software), Services, Equipment, Documentation and all copies thereof including all Updates and/or Upgrades, derivations, modifications and enhancements thereto (including, but not limited to, ownership of all intellectual property rights). This Agreement does not provide Customer with title or ownership of the Agent, Services, Equipment, and/or Documentation, but only a right of limited use. Modification of the source code will void Customer's Agent warranty set forth herein. Customer agrees to inform BackUp Solutions promptly of any infringement or other improper action with respect to BackUp Solutions' intellectual property as stated herein, or the intellectual property rights therein of BackUp Solutions' that comes to Customer's attention. Customer recognizes and acknowledges the exclusive right of BackUp Solutions and/or its suppliers in and to all patents, trademarks, service marks, trade names, copyrights, and other intellectual property and proprietary rights in and to the Agent, Services, Equipment and Documentation, including all Updates and/or Upgrades ("Intellectual Property"), and that such Intellectual Property is the sole and exclusive property of BackUp Solutions and/or its suppliers. Customer waives its right to contest the validity and/or ownership of such Intellectual Property.
6. Warranties.
6.1 Agent Warranty.
BackUp Solutions warrants to Customer that the Agent will substantially conform to the Documentation for ninety (90) calendar days from its initial date of shipment ("Agent Warranty"). BackUp Solutions does not warrant that the Agent will be error-free in all circumstances. Customer will provide prompt written notice of any non-conformity. Customer's exclusive remedy and BackUp Solutions' exclusive obligation with respect to a material breach of this Agent Warranty will be for BackUp Solutions to use commercially reasonable efforts to repair or replace such Agent so as to make such Agent substantially conforming to the applicable Documentation. If BackUp Solutions cannot repair or replace the non-conforming Agent under this Agent Warranty in a commercially feasible way and the non-conformance has been reported in writing during the applicable warranty period, BackUp Solutions will refund or credit, at BackUp Solutions' option, the portion of previously paid Fees allocable to the remaining term for such non-conforming Agent upon return of same to BackUp Solutions. BackUp Solutions will have no obligation with respect to any failure of the Agent to perform as warranted under this section if such failure results from: (a) improper use, (b) unauthorized changes, repairs, or modifications to the Agent, or (c) force majeure events set forth in Section 12.3
6.2 Professional Services Warranty.
BackUp Solutions warrants that all Professional Services shall be performed in a professional and workmanlike manner, consistent with then-current industry standards ("Professional Services Warranty"). Customer's sole remedy for a breach of the Professional Services Warranty shall be, at BackUp Solutions' option, either to (i) re-perform such professional services and/or training, or (ii) provide Customer a refund for the allegedly defective Professional Services. Such remedy shall only be available if Customer notifies BackUp Solutions in writing within thirty (30) calendar days of the completion of such Professional Services.
6.3 Warranty Exclusions & Exclusive Remedy.
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 6, BACKUP SOLUTIONS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED. BACKUP SOLUTIONS DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PROVISIONS SET FORTH IN SECTION 6 STATE BACKUP SOLUTIONS' ENTIRE RESPONSIBILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL BREACH OF WARRANTY.
6.4 Ownership Warranty.
6.4.1 Customer warrants that it (i) shall conform with the privacy statement set forth in Section 12.9, "Data Protection"; and (ii) is the owner or legal custodian of the Protected Data transmitted to BackUp Solutions pursuant to the terms of this Agreement and that it has full authority to vault and transmit said Protected Data, and direct its disposition according to the terms of this Agreement. Customer shall reimburse BackUp Solutions for any expenses reasonably incurred by BackUp Solutions (including reasonable attorneys' fees) by reason of BackUp Solutions' complying with the instructions of Customer in the event of a dispute concerning the ownership, custody or disposition of the Protected Data stored by Customer with BackUp Solutions. Customer hereby authorizes BackUp Solutions to use Protected Data to perform the Services pursuant to this Agreement.
6.4.2 In the event that BackUp Solutions needs to access the Protected Data to respond to any technical problems, queries, or requests from Customer, Customer shall ensure that both Customer and BackUp Solutions are permitted to do so. In such events all such access will be logged by BackUp Solutions.
7. Limitation of Liability; Exclusion of Consequential Damages.
7.1 LIMITATION OF LIABILITY.
BACKUP SOLUTIONS (INCLUDING ANYONE FOR WHOM BACKUP SOLUTIONS IS LEGALLY LIABLE) SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT CUSTOMER SUFFERS OR CLAIMS TO HAVE SUFFERED (INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO THE PROTECTED DATA) UNLESS SUCH LOSS OR DAMAGE IS CAUSED BY BACKUP SOLUTIONS' NEGLIGENCE. THE PARTIES AGREE THAT BACKUP SOLUTIONS ASSUMES NO LIABILITY WHATSOEVER FOR PROTECTED DATA THAT IS MODIFIED OR DELETED BY CUSTOMER (where the Services described in the applicable Schedule allows for such functionality.) IF BACKUP SOLUTIONS IS FOUND LIABLE, THE AMOUNT OF BACKUP SOLUTIONS' MAXIMUM LIABILITY FOR ANY AND ALL LOSS AND/OR DAMAGE (IN CONTRACT, TORT, OR OTHERWISE) FOR ANY REASON ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF ALL FEES PAID TO BACKUP SOLUTIONS FOR THE SERVICE WITHIN THE PRIOR SIX (6) MONTHS FROM WHICH SUCH CLAIM ARISES. IF THE PROTECTED DATA TRANSMITTED IS INSURED BY CUSTOMER, THE CUSTOMER SHALL CAUSE ITS INSURERS OF SUCH PROTECTED DATA TO WAIVE ANY RIGHT OF SUBROGATION AGAINST BACKUP SOLUTIONS.
7.2 EXCLUSION OF CONSEQUENTIAL DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR DAMAGES. THE FOREGOING SHALL NOT APPLY TO CUSTOMER'S BREACH OF SECTION 2.
7.3 ESSENTIAL PURPOSE.
THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
7.4 Shipping Media.
BackUp Solutions may transport Protected Data on media with a common carrier. Customer agrees that the terms of this Agreement apply only to the Protected Data in BackUp Solutions' possession in the performance of the Services. Data shall only be deemed to be in BackUp Solutions' possession when it is in a BackUp Solutions or Iron Mountain facility, in an Iron Mountain vehicle, or in the custody of a BackUp Solutions or Iron Mountain employee or employees of BackUp Solutions or Iron Mountain's subcontractors. Protected Data in the custody of third-party "common carrier" overnight delivery services, such as Federal Express and UPS, is not in BackUp Solutions' possession, and BackUp Solutions shall have no liability for loss, damage or destruction that occurs while Protected Data is in the custody of such common carrier(s).
7.5 Customer Environment.
BackUp Solutions shall bear no liability to Customer or any third-party resulting from Customer's decision not to implement any reasonable change to Customer's technical environment that supports the Agent, Equipment and/or Service that may be advised by BackUp Solutions in writing; and Customer shall hold BackUp Solutions harmless from and against any suit or proceeding (including reasonable attorneys' fees) brought against BackUp Solutions arising directly from such a failure to provide the necessary access and/or support for BackUp Solutions to implement any such change. Further, Customer agrees to inform BackUp Solutions of any Customer system change that may reasonably be expected to affect BackUp Solutions' ability to provide the Service.
7.6 Risk Allocation.
Customer acknowledges and agrees that the allocation of risk contained in this Section 7 is reflected in the Service Fees and is also recognition of the fact that, among other things, it is not within BackUp Solutions' control how and for what purpose the results of the Services are used by Customer.
8. Intellectual Property Indemnification.
8.1 If a third-party claims that the original, unaltered, unmodified Agent infringes any U.S. patent, copyright or trade secret, BackUp Solutions will (as long as Customer is not in material default under this Agreement) indemnify, defend and hold Customer harmless against such claim at BackUp Solutions' expense and pay all damages that a court finally awards, provided that Customer promptly notifies BackUp Solutions in writing of the claim, allows BackUp Solutions to control the defense or any related settlement negotiations and cooperates with BackUp Solutions in the defense of any claim, provided that BackUp Solutions will not effect any settlement unless such settlement provides Customer with a full release. If such a claim is made or appears possible, BackUp Solutions may, at its option, secure for Customer the right to continue to use the software, modify or replace the Agent so it is non-infringing, or, if neither of the foregoing options is available, in BackUp Solutions' reasonable judgment, require Customer to return the Agent for a refund or credit, at BackUp Solutions' sole option, equal to the portion of previously paid Fees allocable to the remaining term. However, BackUp Solutions has no obligation for any claim based on a modified version of the Agent or the combination, operation, or use of the Agent and/or BackUp Solutions' software with any software, product, data, or apparatus not provided by BackUp Solutions. THIS PARAGRAPH STATES BACKUP SOLUTIONS' ENTIRE OBLIGATION TO CUSTOMER AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT.
8.2 Customer will defend and indemnify BackUp Solutions against all damages and losses (including reasonable legal fees) arising from a third-party claim alleging that Customer's (including any user using the Services through Customer's account) use of the Services (as opposed to the Service itself) is used to download or share electronic media in violation of such third-party's intellectual property rights in such electronic media or has otherwise harmed the third-party. BackUp Solutions shall provide Customer prompt notice in writing of any such claim or action. Customer shall have sole control of the defense and all related settlement negotiations and BackUp Solutions shall provide the assistance, information and authority necessary to perform the above. Reasonable, documented, out-of-pocket expenses incurred by BackUp Solutions in providing such assistance will be reimbursed by Customer. BackUp Solutions shall be entitled to participate in the defense with its own counsel at its own expense.
9. Term & Termination.
9.1 Term.
This Agreement shall be in effect as of the date Customer installs BackUp Solutions products on their computer(s), and shall remain in effect until terminated. It is the customer’s responsibility to remove all BackUp Solutions software from customer computer(s).  The “term” will be monthly and automatically renewed unless a different  renewal period(s) is agreed to in a seperate Schedule.
9.2 Termination for Material Breach.
This Agreement and/or its related Schedules may be terminated by either Party upon thirty (30) calendar days written notice for a material breach by the other Party, unless such other Party cures the breach within the thirty (30) day notification period. Customer agrees upon any termination to promptly return any Equipment and to destroy the Agent, together with all copies in any form. Termination of this Agreement or any Schedules does not relieve Customer of any outstanding payments due or any liability arising prior to termination.
9.3 Termination for Convenience.
Customer may terminate any applicable Schedule(s) for convenience after the conclusion of the Initial Term by providing not less than thirty (30) calendar days advance written notice to BackUp Solutions per Section 12.2, "Notices". If any Schedule is so terminated, Customer shall be responsible for all Fees incurred during the Initial Term and any subsequent Term(s) up and until the date of termination. Customer acknowledges and agrees that all prepaid Fees are non-refundable, regardless of a termination that occurs according to this Section.
9.4 Termination for Changes to Applicable Law.
This Agreement and/or any Schedules may be terminated by either Party if the continued relationship, the provision of the services, and/or the transactions hereunder would violate any applicable law (whether such law is existing at the time of this Agreement or thereafter modified or enacted) or result in material costs or liabilities to the terminating Party that were not anticipated as part of the Agreement.
9.5 Effect of Termination.
Upon termination of any Service hereunder, Customer shall return or destroy the applicable Agent, and any other software or materials licensed to Customer for such Service hereunder.
10. Confidentiality.
"Confidential Information" means any proprietary, confidential and/or trade secret information of the Party disclosing such information relating to, among other things, the Agent, Equipment, technology, specifications, manufacturing methods, know-how, business or marketing plans, business relationships, and the terms of this Agreement and/or Schedule(s). Confidential Information shall not include information that: (i) was in the public domain when disclosed; (ii) becomes public domain after disclosure, other than as a result of the violation of this Agreement; (iii) was in the receiving Party's possession when disclosed and was not acquired directly or indirectly from the disclosing Party; (iv) is shown by written evidence to have been developed by the receiving Party independently after disclosure without benefit of the Confidential Information; or (v) was received after disclosure from a third-party who did not require it to be held in confidence and who did not acquire it directly or indirectly from the disclosing Party. Confidential Information shall be used only in the manner contemplated by this Agreement and/or Schedule(s) and shall not be intentionally disclosed to third-parties without the disclosing Party's written consent. The receiving Party will use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than reasonable care under the circumstances.
11. Subpoena.
BackUp Solutions is authorized to comply with any subpoena or similar order related to the data in its possession, provided that BackUp Solutions notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law. Customer shall pay BackUp Solutions' applicable charges as set forth in a Schedule(s) for such compliance, which may include copying data onto CD, DVD or other media. BackUp Solutions will cooperate with Customer's efforts to quash or limit any subpoena, at Customer's expense.
12. General Provisions.
12.1 Entire Agreement; Integration.
This Agreement and all Schedule(s) and Exhibits hereto represent the entire agreement between the Parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the Parties. No modification of this Agreement shall be effective unless in writing and signed by both Parties. All additional or conflicting terms and conditions presented with or in any communication, including but not limited to Customer's purchase order ("P.O."), except with respect to price, quantity and location specified in a P.O., are hereby rejected and shall be deemed null and void.
12.2 Notices.
All notices relating to this Agreement shall be in writing and shall be delivered (i) by overnight courier or hand, (ii) postage prepaid certified or registered first-class mail with return receipt requested, (iii) electronic transmission or (iv) facsimile. Notices shall be sent to the address of the other Party set forth on the signature page of this Agreement or to such other address as either Party may specify in accordance with this Section, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment or receipt of electronic transmission.
12.3 Force Majeure.
Neither Party shall be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by the other or an end user by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such Party's foreseeable control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond such Party's reasonable control.
12.4 Relationship with Third Parties.
No Customer, end user or other person or entity not a Party to this Agreement shall be considered a third-party beneficiary of this Agreement.
12.5 Severability & Survival.
The illegality or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any legal and enforceable provisions hereof. The following provisions shall survive any termination of this Agreement: Sections 2, "License Grant & Restrictions"; 4, "Prices & Payment"; 5, "Intellectual Property & Protections"; 7, "Limitation of Liability; Exclusion of Consequential Damages"; 8, "Intellectual Property Indemnification"; 9.5, "Effects of Termination"; 10, "Confidentiality"; and 12, "General Provisions."
12.6 Assignment.
This Agreement may not be assigned by either Party (other than to an affiliate which shall assume the obligations of its assignor by written instrument) without the written consent of the other Party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may not assign this Agreement to a direct competitor of BackUp Solutions. This Agreement binds the Parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.
12.7 Applicable Law.
This Agreement and all resulting claims and/or counterclaims shall be governed, construed, enforced and performed in accordance with the laws of the Commonwealth of Massachusetts, USA, without reference and/or regard to its conflicts of laws principles. Each Party hereby submits to the exclusive jurisdiction of the courts of Massachusetts and hereby waives any objections to venue with respect to actions brought in such courts.
12.8 Export Restrictions.
Customer agrees and certifies that software, products, services, and/or all related technical information and materials that Customer receives from BackUp Solutions will not be exported or re-exported outside of the United States ("U.S.") except as authorized and permitted by the laws and regulations of the U.S., and export or re-export contrary to U.S. laws is prohibited. Customer agrees to comply, at its own expense, with any and all foreign governmental requirements relating to Customer's exports from the U.S., importation and use outside of the U.S., and/or re-exports from abroad of such products, services, and/or all technical information and materials. Customer will indemnify, defend, and hold harmless BackUp Solutions from and against any claim, loss, liability, or damage suffered by BackUp Solutions related to Customer's breach of this provision. Customer also agrees that BackUp Solutions may withhold provision of software, products, services, and/or technical information and materials under this Agreement if BackUp Solutions believes, in good faith, that Customer has breached this provision.
12.9 Data Protection.
The Parties acknowledge that Agent, Equipment or Services may be used to process information regulated by privacy or data protection laws. CUSTOMER EXPRESSLY AGREES THAT BACKUP SOLUTIONS DOES NOT CREATE, OPERATE, CONTROL, OWN OR ENDORSE ANY DATA, INFORMATION, OR THIRD-PARTY PRODUCT PROCESSED BY OR USED IN CONJUNCTION WITH THE AGENT, EQUIPMENT, OR SERVICES PROVIDED HEREUNDER. BackUp Solutions shall act only on the instructions of Customer in processing any Personal Data. Customer hereby instructs BackUp Solutions to take such steps in the processing of Personal Data as are reasonably necessary to the performance of BackUp Solutions' obligations under this Agreement, and agrees that such instructions constitute its full and complete instructions as to the means by which Personal Data shall be processed by BackUp Solutions. To the extent that any privacy or data protection laws impose an obligation upon BackUp Solutions to comply with an individual's request for access to or correction of their Personal Data, Customer agrees that it shall satisfy such obligations. BackUp Solutions agrees that it shall forward any such individual requests that it receives to Customer and reasonably assist Customer, at Customer's expense, in their satisfaction. BackUp Solutions agrees that it shall: a) not use Personal Data save for the purposes of delivering the Agent, Equipment or Services as instructed by this Agreement; b) upon termination of this Agreement, return Personal Data to the Customer or destroy such Personal Data in accordance with Customer's written instructions; c) implement security measures reasonably designed to safeguard Personal Data against unauthorized access, loss, destruction, damage or disclosure; and d) provide reasonable support to Customer in complying with any legally mandated request or demand made by any court or governmental authority responsible for enforcing privacy or data protection laws.
12.10 Affiliates.
Certain lines of service may be performed by an affiliate of BackUp Solutions. In such event, such affiliate will perform such service as a subcontractor to BackUp Solutions. The subcontracting entity may invoice Customer directly, but BackUp Solutions will remain liable for all services performed for Customer.
12.11 Government End-User Notice. The Agent 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-users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.
12.12 ITAR.
Customer understands that BackUp Solutions employees may have access to native data to perform the Services herein and represents that none of this data requires protection from access by foreign person(s) because it contains technical information regarding defense articles or defense services within the meaning of the International Traffic in Arms Regulations (22 CFR 120) or technical data within the meaning of the Export Administration Regulations (15 CFR 730-774). If any of this data does contain any such information, Customer will notify BackUp Solutions of the specific data that contains such information and acknowledges that special storage and service rates will apply thereto.
12.13 Waiver.
Each Party agrees that the failure of the other Party at any time to require performance by such Party of any of the provisions herein shall not operate as a waiver of the rights of such Party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.
12.14 Headings.
All headings used herein are for convenience of reference only and shall not in any way affect the interpretation thereof.
{End of Terms and Conditions.}