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REPLIGUARD OFFSITE BACKUP AGREEMENT
RepliGuard and Customers who purchase RepliGuard Services using the website repliguard.com (hereinafter referred to as “Customer”) are entering into this Agreement for the provision of RepliGuard Offsite Backup Services for Customer’s Data Files maintained on its Server or Network as specifically identified herein. RepliGuard and Customer, intending to be legally bound, agree as follows:
1. Scope of Service. RepliGuard shall provide Offsite Backup Services as described more fully herein.
2. Exclusions from Service. Offsite Backup of any Program Files is excluded from this Agreement. Set up of New and Replacement Hardware or Software including, but not limited to, operating system upgrades, system configuration, additions to network, data transfer, loading of system applications and software is excluded from this Agreement and will be billed to Customer at the Standard Hourly Rate. Offsite Backup Service shall exclude all situations where necessary Hardware or Software are rendered inoperable, in whole or in part, due to circumstances related to:
a. Obsolescence;
b. Ordinary wear and tear;
c. Accidental, intentional or negligent damage;
d. Alteration, tampering, hacking, sabotage or destruction;
e. System incompatibility;
f. Independent revisions;
g. Additions or deletions of Hardware or Software by Customer or any third party;
h. Failure or interruption of services provided by a third party;
i. Defects in workmanship or failure of products provided by another vendor; or
j. Any other circumstance excluded in this Agreement.
3. Obligations of Customer. Customer shall provide RepliGuard with reasonable physical access or Remote Access to the necessary Hardware and Software for the purpose of providing Offsite Backup Services. Customer shall promptly notify RepliGuard of operational errors or problems and shall not undertake self repairs. Customer shall not tamper with, alter, adjust, add to, disturb, move, remove or otherwise interfere with the systems or software described herein, nor permit the same to be done by others. If this occurs, there is a breach of the foregoing obligation and Customer will pay RepliGuard an additional amount for any repairs that are necessary to maintain the integrity of the system or software. Customer hereby authorizes and empowers RepliGuard, its agents or employees, to make any changes in, or alterations to, the equipment or software at the request of Customer at an additional expense to Customer. Customer specifically agrees to undertake the following with relation to all Covered Hardware and Software:
a. Keep in full force and effect all Software License Agreements including updates;
b. Maintain appropriate physical and electronic security and protection including, but not limited to, protection against viruses, hacking, electrical surges and environmental/physical perils;
c. Maintain and preserve all passwords, access or activation codes, and the like;
d. Refrain from adding to, modifying, deleting or otherwise altering existing systems or Software configurations; and
e. Comply with the terms of any Manufacturer’s Warranty.
Any damage or problems caused in whole or in part by Customer’s failure to meet the obligations set forth in this Agreement are excluded from this Agreement. Any remedial action taken by RepliGuard will be subject to additional charges at the Standard Hourly Rate.
4. Communication Circuits and Network Wiring. Customer is responsible for the cost and maintenance of all telephone, internal network wiring, network circuitry or other communication medium required for dutiful transmission and system access. All Data Files are transmitted over communication company circuits, which are wholly beyond the control and jurisdiction of RepliGuard and are maintained by the communications company. If these communication circuits are not functional for any reason, the data files may not accurately or completely reach RepliGuard’s facility or equipment. RepliGuard cannot be responsible for the continued operation or functioning of these communication circuits nor the reliability of the data files being received over them.
5. Password Security. It is the FULL responsibility of Customer to record the password that Customer chose during the initial installation of service and all subsequent passwords applicable to the Server, Network, Hardware or Software. RepliGuard will not be held responsible for the loss of the password and does NOT maintain Customer passwords. Customer understands that, without the password, the encrypted stored data cannot be retrieved and shall not hold RepliGuard responsible in any way for any losses of any kind whatsoever.
6. Confidentiality. RepliGuard and its employees will keep all statistical, financial and personal data related to the business of Customer in strictest confidence. Such confidential Customer data will not be disclosed except as required by law. All data transferred from Customer to RepliGuard’s Offsite Backup Servers is encrypted by the RepliGuard Software and inaccessible by any person that does not possess the secure password.
7. Payment for Services. Customer shall pay to RepliGuard compensation for services rendered on a monthly basis in the amount indicated on the Fee Schedule which is attached hereto and incorporated herein by reference. Work not included in this Agreement will be charged on an individual basis in addition to the recurring monthly fee in the amount of RepliGuard’s Standard Hourly Rate. This work will only be done after Customer has been notified of the charges and approves the work to be completed. Payment is due on the first day of each month at the address of RepliGuard as set forth herein or such other address as designated in writing by RepliGuard. There shall be a five (5) day grace period after which interest shall accrue at the rate of two percent (2%) per month. In the event it shall become necessary for RepliGuard to institute legal proceedings or employ a collection agency to collect monies due as part of this Agreement, including service fees, Customer shall also pay reasonable attorney or collection agency fees and expenses.
8. DISCLAIMERS AND WARRANTIES. REPLIGUARD RESERVES THE RIGHT TO MODIFY THIS WARRANTY AT ANY TIME. REPLIGUARD WILL NOT BE RESPONSIBLE FOR ANY EQUIPMENT DAMAGED BY ANY NATURALLY OCCURRING EVENT SUCH AS LIGHTNING, FLOOD OR EARTHQUAKE OR OTHER EVENTS OUT OF REPLIGUARD'S CONTROL SUCH AS FIRE, POWER SURGES OR THE ACTS OF OTHERS. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. REPLIGUARD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. REPLIGUARD MAKES NO EXPRESS WARRANTIES AND WAIVES ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING ANY MERCHANDISE, INFORMATION OR SERVICE PROVIDED THROUGH REPLIGUARD OR THE INTERNET GENERALLY. NO ADVICE OR INFORMATION GIVEN BY REPLIGUARD OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. REPLIGUARD AND ITS EMPLOYEES ARE NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING DIRECTLY OR INDIRECTLY FROM YOUR USE OF THE SERVICES OR THE INTERNET INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, MULTIPLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES. IN ANY EVENT, REPLIGUARD’S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING A CLAIM. REPLIGUARD SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS OR PROCEEDINGS RESULTING FROM: OTHER USERS ACCESSING YOUR COMPUTER; SECURITY BREACHES; EAVESDROPPING; DENIAL OF SERVICE; ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICES; YOUR RELIANCE ON OR USE OF THE EQUIPMENT OR SERVICES; OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS OR ANY FAILURE OF PERFORMANCE OF THE EQUIPMENT OR SERVICES; THE USE OF THE EQUIPMENT OR SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY; THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL SERVICES, PRODUCTS AND OTHER INFORMATION AND THE QUALITY AND MERCHANTABILITY OF ALL MERCHANDISE PROVIDED THROUGH THE SERVICE OR THE INTERNET.
THE FOREGOING LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF REPLIGUARD, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST REPLIGUARD IN CONTRACT, TORT OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET OUT IN THIS AGREEMENT. ANY WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
9. Limitation of Liability. RepliGuard has not made and makes no guarantee or warranty, including implied warranty or merchantability or fitness, that the system, equipment or services supplied will avert, avoid or prevent the loss of data or information or the consequences therefrom, which the system or service is designed to provide. It is mutually understood and agreed that in executing this Agreement, Customer is not relying on any advice or advertisement of RepliGuard. Customer agrees that any representation, promise, condition, inducement or warranty, express or implied, including those of merchantability and fitness, not included in writing in this Agreement shall not be binding upon any "party." Customer assumes all risk for loss or damage to Customer's equipment and Data Files except as specified herein.
10. Term and Termination. The term of this Agreement shall commence on the date that payment is recieved and processed successfully and shall continue in full effect for a period of one (1) years. This Agreement shall automatically renew for additional one (1) year terms, unless terminated by Customer by way of written notice to be provided to RepliGuard no later than thirty (30) days prior to the end of the then current year. Notwithstanding the terms and conditions set forth herein, after the expiration of the initial term of this Agreement, RepliGuard may, at any time, increase the fees and charges upon giving Customer notice in writing. In the event Customer shall be unwilling to pay the increased monthly fee, Customer may terminate this Agreement upon giving (30) days written notice to RepliGuard. Failure to notify RepliGuard will constitute Customer's consent to the increase and all other terms and conditions of the Agreement shall remain in full force and effect. If Customer terminates this Agreement before the term has expired, Customer will be responsible for paying the full amount of monies owed to RepliGuard for the remainder of the Term.
11. Definitions. All terms shall have their ordinary and customary meanings except as defined herein, in such case they shall have the following meaning:
a. RepliGuard Offsite Backup Service. The Backing up of specific Data Files selected by the Customer over the Customer’s existing internet connection to an Offsite Backup Server maintained by RepliGuard using proprietary software which encrypts and transmits the data automatically on a pre defined schedule.
b. Initial Setup. RepliGuard will perform the installation and configuration of the RepliGuard software on one (1) computer/server to perform an initial full backup of the Customer’s computer(s)/server(s) DATA FILES ONLY, NO PROGRAM FILES, as well as offer assistance in the configuration of the RepliGuard Software’s scheduling and incremental backups of that same Data to be indicated and/or initiated by Customer for the Setup Fees indicated on attached Fee Schedule.
c. Support Incident. Any issue that requires RepliGuard Support personnel to interface with the Customer’s Hardware or Software outside of the initial Installation of the RepliGuard Offsite Backup Software. Customer’s are allotted 10 non-billable Support Incident per year afterwhich all Support Incidents become billable at RepliGuard’s Standard hourly Rate.
d. Hardware. All those Servers, PCs and/or Networks necessary for conducting Offsite Backup Services.
e. Software. All those Software programs necessary for conducting RepliGuard Offsite Backup Services.
f. Server. An application or device that performs services for connected clients as part of a client-server architecture. Examples include, but are not limited to: web servers, e-mail servers, application servers, terminal servers, and file servers.
g. Data File. An electronic file stored on a server or network that contains data usually created by the Customer. A Data File differs from a Program File in the sense that it is not needed to run software.
h. Program Files. An electronic file stored on a server or network that contains a set of instructions used to run a program.
i. Network. A Network is an interconnection of a group of computers usually for the purpose of sharing data, peripherals, or electronic files. A Network can be wired or wireless or a combination of both and may also include, but is not limited to, such devices as Servers, Routers, Firewalls, Switches, Hubs, Access Points, and other routing devices.
j. Service Call. RepliGuard Offsite Backup Support service that cannot be provided by Remote Session may be provided by a service technician at Customer’s location including Travel Time to such location.
k. Repair Shop. RepliGuard Offsite Backup Support service that cannot be provided by Remote Session or Service Call may be conducted at RepliGuard’s repair shop.
l. New and Replacement Hardware. Any device that is added to or replaces Hardware necessary for the conducting of Remote Access Services.
m. Location. Customer’s business address and other sites where Covered Hardware and Software are physically present.
n. Remote Session. Remote Session is an internet (ISP) access to Customer’s Network for the performance of support services; however, there are times when a remote session is not sufficient to maintain the hardware and/or network, at which point an onsite service call is necessary. If an issue is unable to be resolved within a one (1) hour remote session, an onsite service call will be scheduled. Service Calls to maintain Hardware and Software are non-billable for Customers who have remaining Support Incidents and billable at a RepliGuard’s standard hourly rate for all other Customers.
o. Remote Monitoring. Network monitoring via Remote Session and notification of outages with assistance in troubleshooting via Remote Session or Service Call are charged at the Standard Hourly Rate. This excludes data recovery in the event of disaster or network equipment malfunction. Remote Monitoring cannot be conducted during ISP outages. Costs associated with repair or replacement of network components are the responsibility of Customer.
p. Backup Monitoring. Daily log on and monitoring of data backups with troubleshooting via Remote Session of problems with Backup Drives and Software. RepliGuard does not guarantee the effectiveness of Data Files backup or that all data will be recoverable in the event of system failure. Service Calls, Repair Shop service and server reload are billed at the Standard Hourly Rate. RepliGuard may assist with, but is not responsible for, data recovery in the event of a system failure.
q. Software Maintenance. Software applications that have an existing maintenance plan with the software manufacturer will be maintained under the RepliGuard Maintenance Solution. If a service plan is not available through the software manufacturer, software updates and/or knowledge base articles must be available. If none of this information is available, the software will NOT be maintained under the terms of this Agreement. All software must have a valid License key. RepliGuard will NOT maintain “pirated” software. It is also necessary that a product key is available in the event that the software needs to be reinstalled.
r. Manufacturer’s Warranty. The warranty provided by the manufacturer of necessary Hardware or Software.
s. Standard Hourly Rate. Any work outside of the Maintenance Solution term will be billed separately at our standard hourly rate which is listed on the attached Fee Schedule but may be increased from time to time without prior notice. All work completed outside the terms of this Agreement will first be proposed and will require Customer's signature before work is completed.
t. Disaster Recovery. Remote or Onsite Data recovery or Server reload and reset up in the event of disaster due to data corruption or natural disasters including fire, water or other peril. Recovery may require the purchase of replacement parts. These parts must be purchased from RepliGuard by Customer. This Agreement does not cover intentional or accidental damage. Customers will be charged at the Standard Hourly Rate for such services including repair of destroyed data or reload of any hardware/software.
u. Travel Time. The time necessary for one way travel from RepliGuard's office currently located at 631 South Water Street, Lancaster, Pennsylvania (or such other location as may be relocated), to Customer's location of service call.
v. Updates, Upgrades and Licensing Renewals. RepliGuard will take due care to keep in working order all necessary Hardware and Software. As a part of our Offsite Backup Support, we may make recommendations regarding when such software, hardware and firmware updates, upgrades or licensing renewals are available and should be applied, installed or purchased to ensure optimum performance and to prevent degradation and security risks. If Customer chooses to neglect the recommendations of RepliGuard regarding these updates, upgrades and/or licensing purchases or modifications, RepliGuard will not be liable under the terms and conditions of this Agreement to resolve any issues which are the direct or indirect result of Customer's choice to ignore those recommendations.
w. Independent Revisions. Any upgrades and/or adjustments independently made by users will not be maintained by RepliGuard. The Hardware and Network configurations must remain unchanged in order for RepliGuard to effectively maintain the network and Covered Hardware. If revisions are completed without RepliGuard 's consent, RepliGuard is not liable to support repercussions from those revisions. RepliGuard may assist with issues caused by revisions; however, that assistance will be billed at our Standard Hourly Rate. RepliGuard may also charge for the re-set up of RepliGuard Software and Backup Monitoring services if they were affected by revisions. RepliGuard must be provided at least forty-eight (48) hours notice prior to any adjustments made to Covered Hardware and/or Network.
12. Miscellaneous.
a. Acknowledgments of Customer. Customer acknowledges that the RepliGuard Offsite Backup Services provided under this Agreement may necessitate a significant financial outlay by RepliGuard which are amortized over the Term of the Agreement. Early termination of the Agreement will result in financial hardship to RepliGuard.
b. Discontinuation of Service by RepliGuard. In the event of default or nonpayment by Customer, RepliGuard reserves the right to discontinue all services under this Agreement and recover in full the fees for the remaining Term of the Agreement.
c. Complete Agreement. This Agreement, together with all attachments, is the entire agreement of the parties. Any representation, promise, condition, inducement or warranty, express or implied, verbal or written, unless expressed in writing in this Agreement or any attachment hereto, shall not bind either party and the terms and conditions hereof apply as printed without alteration or qualification except as specifically endorsed thereon in writing. A judicial determination nullifying any clause or condition herein shall not be deemed to nullify the balance of this Agreement, which shall remain in full force and effect.
OTHER TERMS AND CONDITIONS
The following Terms and conditions apply to all RepliGuard services. By signing up for any RepliGuard Service, you agree to the terms and conditions as stated.
Billing Rate (Billing Rates are subject to Change): $110.00/Hour
Support Incidents and Service Calls:
• There is a one hour minimum charge for each service call. Additional time is billed in half (1/2) hour increments.
• A Service Call is considered billable from the time our technician begins traveling to your location until the completion of the services being provided.
• Remote Support may be provided and billed in half (1/2) hour increments. There is a half (1/2) hour minimum charge for each remote session.
• Full payment in the form of Cash, Check, Money Order, Visa or MasterCard, is due upon completion of service call.*
* Future service calls AFTER the initial visit may be invoiced with Net 15 Terms: FULL PAYMENT DUE ON NET 15 AFTER COMPLETION OF JOB. IF PAYMENT IS NOT RECEIVED IN 15 DAYS, there shall be a five (5) day grace period after which interest shall accrue at the rate of two (2) percent per month. Should payment not be made within the five (5) day grace period, RepliGuard, upon notice to Client, shall have the right to cease all Services and the full payment shall become immediately due and payable along with reasonable attorney fees incurred in collection. |
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