Cloud IBR Services Agreement
TERMS AND CONDITIONS
Service Provider will provide the Client with access to the Cloud IBR portal (“Services”) in accordance with the terms and conditions set forth in this Agreement.
DESCRIPTION OF SERVICES
Cloud Instant Business Recovery (“Services”) and (“Cloud IBR”) provides the customer with access to the Cloud IBR portal which enables them to recover their Veeam server backups to a secure bare metal cloud infrastructure.
TERM OF AGREEMENT; SERVICES
The Effective Date shall be the date that the Client subscribes to this Service. The Agreement shall remain in effect for so long as the Client has an active subscription. The initial subscription Term is for one (1) year and the parties agree that either party may elect not to renew the Services for an additional Term, provided such party terminates the Service prior to the annual renewal date of the then current Term. The failure to terminate the Service prior to the renewal of the term shall result in an automatic renewal for one (1) year, under the same terms and conditions as the initial Term.
Upon the Effective Date, Service Provider shall charge the annual subscription fee to the Client’s credit card as specified by the Client during sign up.
Annual renewals will automaticlaly be billed to your credit card on the annual renewal date.
PhoenixNAP shall bill Client’s credit card for hourly usage of the PhoenixNAP Bare Metal Cloud during recovery tests and during an actual disaster recovery. Fees range from $0.08 (8 cents) to a few dollars per hour, as shown here.
The prices applicable to the services do not include sales, use, excise, value added, or similar taxes. Consequently, in addition to the specified prices, the amount of any present or future sales, use, excise, value added or other similar tax applicable to the sale of services, specifically excluding taxes on the gross income of Service Provider, shall be paid by Client or in lieu thereof, Client shall provide Service Provider with a tax-exemption certificate acceptable to the taxing authorities.
In the event of a Disaster (as defined below) Client will have use of Client’s Services as defined in attached Schedule(s). A “Disaster” shall herein be defined as any act of God, civil disorder, flood, tornado, hurricane, fire, earthquake, explosion, sabotage or any other catastrophic unplanned event or any condition that renders Client unable to use its office facilities or the equipment situated there for its intended computer processing and business related purposes. Furthermore, Client may, in its reasonable judgment, treat a forecasted imminent Disaster as a Disaster. Notification of a Disaster may only be communicated verbally by a Client Authorized Representative identified in Schedule E and shall specify the nature of the Disaster that has occurred and affected Services needed (including any delivery and installation of any particular equipment), and the name of another designated representative of Client who can verify the Disaster. Client shall provide written confirmation, if available, of the relevant information, as reasonably requested by Continuity Centers. Immediately following verbal notification by Client, Continuity Centers shall supply the Services.
Client is responsible for maintaining its production environment in good working order, including taking preventative measures against malware and data corruption. It is understood that changes to the Client’s software or production environment caused by malware, viruses or other computer contaminants, may adversely impact upon the operating system and may result in data corruption. In the event that the Client’s data or system is infected by a virus or subject to malware rendering Service Provider unable to perform its duties, the Client agrees to fully indemnify and pay Service Provider for any and all loss or costs incurred to correct the modification to Service Provider’s Services. This indemnification and reimbursement applies to all reasonable costs incurred by Service Provider to address and correct the condition caused by ineffective or corrupt software and production environment provided by the Client. Each party hereby agrees to hold harmless the other party for any claim or damage, whether actual, incidental, or consequential, of any nature whatsoever, resulting from any malfunction, corruption, or modification of the software or any other intellectual property supplied by such party to the other party.
Service Provider will not be liable for failure to deliver or delay in delivering or performing services provided hereunder that are the result of force majeure, including but not limited to, "Acts of God", war, the failure of third parties or any causes beyond its reasonable control. Client will be notified in writing of such a force majeure and will have the option either to extend the term of this Agreement for the period of the event at no additional charge for such extension or to have fees charged for the period of the event suspended (unless such event results from an act or omission of Client, in which case such remedies shall not apply).
LIMITATION OF LIABILITIES AND REMEDIES
Service Provider represents and warrants that all services shall be performed in a workmanlike manner by employees of appropriate skill and experience, that when used as instructed software and hardware provided by Service Provider shall perform in material conformity with its applicable documentation, and that in the course of performing this Agreement Service Provider shall act in all applicable legal obligations, and without breach of an obligation or duty imposed by law or contractual agreement to any third party. For any claim concerning the performance or nonperformance by Service Provider pursuant to, or in any other way related to the subject matter of this Agreement, Client shall be entitled to recover actual damages to the limit set forth herein. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION.
The liability of Service Provider for damages (regardless of the form of action, whether in contract or in tort) shall in no event exceed the amount paid by Client to Service Provider during the preceding one (1) month under this Agreement. Service Provider will not be liable to Client, or to any other person, for any claim or damage arising, directly or indirectly, from the furnishing of services or equipment pursuant to this Agreement or from interruption or loss of use thereof, from the loss or corruption of data (whether temporary or permanent) or the inability to restore data due to the Client losing Client’s encryption keys or passwords, or from any other cause whatsoever. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST CLIENT BY ANY OTHER PARTY.
Any proprietary information relating to the business operations of either party, or their respective parent or affiliated companies, obtained by the other party as a result of the performance hereunder, including but not limited to, Service Provider’s physical security system and access control system, the identity of the other party’s or its affiliates’ Clients and suppliers, business processes and techniques, pricing and guidelines, research and development, shall be deemed confidential and shall not be disclosed by either party to any third party without prior written consent, unless said third party is an agent of the disclosing party and is provided the proprietary information only as reasonably necessary in connection with its role as agent to the disclosing party. These provisions may be enforced by injunction without the necessity of proving actual damages or posting a bond. Service Provider will destroy any Client confidential information stored by Service Provider, as requested by Client, and provide Client with written confirmation.
Each party shall indemnify and save harmless the other, its parent, subsidiaries and affiliates, and the respective directors, officers, employees and agents of any of them, and other Clients from any and all claims, liabilities, demands, losses, damages, and causes of action relating to personal injury, death, or property damage, including all expenses arising out of the intentional or negligent acts or omissions of either party in the performance or nonperformance of either party.
Failure of Client to pay when due any payment of charges or fees during the term of this Agreement, or failure by any party substantially to perform, keep or observe any other term, provision, warranty or condition contained in this Agreement, unless otherwise excused by the terms of this Agreement, shall constitute an event of default. If any party to this Agreement fails to correct its default hereunder within thirty (30) days after written notice to do so, the party providing such notice may unilaterally terminate this Agreement forthwith by providing written notification thereof. Termination of the Agreement shall not affect a party’s liability hereunder by reason of any act, default or occurrence prior to such termination.
In the event of termination due to Client’s default, all amounts then owing and the entire remaining unpaid balance of the Subscription Fees for all of the remaining months of the Initial Term, or any Renewal Term or extension thereof, shall become immediately due and payable, and Client shall also reimburse Service Provider on demand for Installation Charges, other contractual charges and all costs including reasonable attorneys’ fees incurred by Service Provider in enforcing the collection of such sums. The provisions of Sections 15, 16, 17 and 18 shall survive any such termination.
No waiver by either party of any breach or default of any provision herein contained shall be construed as a waiver of any subsequent breach of the same or any other provision.
This Agreement and the SOW(s) and other documents referred to herein constitute the entire Agreement of the parties with respect to the subject matter hereof, and supersede all prior proposals, oral and written, all previous negotiations and all other communications or understandings between Service Provider and Client, and may not be amended except by a written amendment executed by an authorized representative of the party being bound thereby. No waiver or modification of any of the provisions hereof shall be binding upon either party unless signed in writing by a duly authorized representative of each party. This Agreement may not be assigned by Client without Service Provider’s prior written consent; provided however that no such consent is required in connection with an assignment to an entity that acquires all or substantially all of the assets of the assigning party. The services provided under this Agreement are for the sole benefit and use of Client, and shall not be made available to any other persons.
The relationship between Service Provider and Client hereunder is that of independent contractors, and nothing set forth herein shall be construed as constituting a partnership, joint venture or agency between Service Provider and Client.
Any Notice or other communication, except declaration of a Disaster, to either party by the other hereunder shall be given in writing and deemed effective if mailed registered or certified postage prepaid by regular mail or airmail to the address for such party as set forth above or at such changed address as may be subsequently delivered by written notice from such party to the other party. All SOW(s), Schedules, Attachments and/or Addenda are incorporated into this Agreement and made a part hereof. In the event of conflict between this Agreement and its SOW(s), Schedules, Attachments, and/or Addenda, the SOW(s), Schedules, Attachments and/or Addenda shall prevail. A photographic or electronic copy of this Agreement shall be as valid as the original.
This Agreement will be construed in accordance with the laws of the State of New York.
Client agrees that any software provided by Service Provider for use in connection with the Service is and will be proprietary to Service Provider (or third parties with whom Service Provider has appropriate license or other usage agreements). Client will not be entitled to make any copies of any such software and the rights of Client to the use thereof will be strictly limited to the use of the services in accordance with the terms of this Agreement.
Client shall at all times maintain all registrations and comply with all applicable state and federal laws as may be necessary for its use of the equipment and Service.
Any disputes arising out of or in connection with this Master Services Agreement shall be resolved in Supreme Court of the State of New York, County of Nassau. In addition, should Service Provider incur legal expenses, costs and disbursements in enforcing any of its rights under this Agreement, then the Client hereby agrees to pay those reasonable costs, expenses, including attorneys’ fees incurred by Service Provider. Notwithstanding this provision, before any action is commenced by Service Provider it hereby undertakes to afford the Client the written basis for the contemplated action and a reasonable opportunity (not to exceed twenty (20) days) to cure or correct Service Provider’s claim if in fact the claim is subject to cure or correction.