Master Backup Services Agreement
This Backup Services Agreement (the "Agreement") is between the Backup client and BTR Services,
This Agreement may be executed by using the BTR Services backup client to connect to BTR Services Backup Servers. Once connected, this Agreement is effective as of the last date shown in the access log.
As used in this Agreement, "Backup Services or Services" means the backup services and / or other IT services ordered by client.
FEES AND BILLING.
SERVICE CHARGES. Customer agrees to pay the monthly charges for Backup Services.
BILLING AND PAYMENT TERMS. Beginning on the date of commencement of the Services, Customer will be billed monthly for the contracted Services after services are rendered; except for specified one-time Services ordered by client, which will be billed separately. All Service Charges and other fees will be due in U.S. dollars within thirty (30) days of the date of invoice. As used herein, undisputed amounts shall refer to all amounts due
SERVICES. The Backup Client will be provided access to the Backup Servers.
WARRANTY. BTR Services represents and warrants that it will provide the Services at a professional level of quality conforming to generally accepted industry standards and in compliance with all applicable laws and regulations.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, CUSTOMER'S USE OF THE SERVICES ARE AT CUSTOMER'S OWN RISK, AND BTR SERVICES DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THERE IS NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
DISCLAIMER OF THIRD PARTY ACTIONS AND CONTROL. BTR Services does not and cannot control the flow of data to or from other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which Client connections to the Backup Server may be impaired or disrupted. It cannot be guaranteed that such situations will not occur and, accordingly, BTR Services disclaims any and all liability resulting from or related to such events. BTR Services recommends Client monitor and review log files regularly. In the event that Client's use of the Backup Service or interaction with the Backup server or such third parties is causing harm to or threatens to cause harm to the BTR Services network, BTR Services shall have the right to suspend the Backup Service. BTR Services shall restore Service at such time as it reasonably deems that there is no further harm or threat of harm to the BTR Services network or its operations.
LIMITATIONS OF LIABILITY.
EXCLUSIONS. In no event will either party be liable for any incidental, punitive, indirect or consequential damages (including without limitation any lost revenue or lost profits) or for any loss of technology, loss of data, or interruption or loss of use of Backup Service or any other similar claims by a party or related to Client's or BTR Services business, even if BTR Services or Client , as applicable, is advised of the possibility of such damages.
MAXIMUM LIABILITY. Notwithstanding anything to the contrary in this Agreement, either party's maximum aggregate liability to the other related to or in connection with this Agreement whether under theory of contract, tort (including negligence), strict liability or otherwise will be limited to the total amount due to BTR Services from Client for current month billing.
COVERED CLAIMS. Each party (the "Indemnifying Party" for purposes of this Section) will indemnify, defend and hold harmless the other party (the "Indemnified Party"), its directors, officers, employees, and affiliates (collectively, the "Indemnified Entities") from and against any and all claims, actions or demands brought against any of the Indemnified Entities alleging: (a) infringement or misappropriation of any intellectual property rights by the Indemnifying Party except to the extent caused by the Indemnified Party; (b) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, or spamming or any other tortious or illegal conduct; (c) any property loss suffered by any other customer of BTR Services resulting from acts or omissions by the Indemnifying Party or its representative(s) or designees; (d) any personal injury suffered by any representative, employee or agent of the Indemnified Party arising out of such individual's activities related to the Services except to the extent caused by the Indemnified Party's negligence or willful misconduct.
TERM. This Agreement will commence on the first connection Date as logged and will continue to renew every thirty (30), unless sooner terminated as provided herein. Each invoice will have the date specified therein, and after the initial term will automatically renew on a monthly basis until Client terminates with 30 days prior written notice to BTR Services.
CONVENIENCE. After the initial term, Customer may terminate this Agreement upon 30 days prior written notice.
NONPAYMENT. In addition to its rights under Section 9.4 below, BTR Services may suspend service to Customer if Customer is in breach of its payment obligations hereunder and has failed to make such payments after having received 10 days notice of such breach from BTR Services. Reinstatement of Backup Services may involve costs, for which a reasonable reconnection fee may be required.
BANKRUPTCY. Either party may terminate this Agreement upon written notice to the other party if such other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
BREACH. Except as otherwise stated, either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and falls to cure such breach within ten (10) days after receipt of written notice of the same.
EFFECT OF TERMINATION. Upon expiration or termination of this Agreement: BTR Services will cease providing the Backup Services and, all of Customer's payment obligations under this Agreement, including but not limited to the Service Charges will become due in full immediately. Customer is obligated to cease connecting to or sending data either by de-scheduling, or uninstalling the backup client on Customer's system
SURVIVAL. The Parties' respective representations, warranties, and covenants, together with obligations of indemnification, confidentiality and limitations on liability will survive the expiration, termination or rescission of this Agreement and continue in full force and effect.
FORCE MAJEURE. Other than with respect to failure to make payments due, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control.
GOVERNMENT REGULATIONS. Client will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by any government within whose jurisdiction Client operates or does business.
ASSIGNMENT. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, except to an affiliate or a party that acquires substantially all of the assigning party's assets or a majority of its stock as part of a corporate merger or acquisition. Any attempted assignment or delegation without such consent will be void. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
NOTICES. Any required notice hereunder may be delivered personally or by courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, to either party at the name and address provided on the Client Request form, or at such other address as such party may provide to the other by written notice. Such notice will be deemed to have been given as of the date it is delivered personally or by courier, or five (5) days after it is sent by mail. In addition, BTR Services shall have the right to send Client notices, including notices for default or termination, to Client's email address as contained on BTR Services customer contact list. Such email notification is deemed delivered on the day sent unless returned to sender.
RELATIONSHIP OF PARTIES. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
CHOICE OF LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, excluding its conflict of laws principles.
GENERAL. This Agreement, is the complete agreement and understanding of the parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral. This Agreement may be modified only through an instrument agreed to by both parties. Should any provision of this Agreement be declared void or unenforceable, such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original terms and the remainder of this Agreement will remain in full force and effect. If a conflict arises this Agreement will take precedence.