Data Center

Network Services

Hosted Infrastructure

REMOTE BACKUP TERMS AND CONDITIONS

As used in this Agreement, "Service" means the provision of Remote Backup Service accessible 24x7 via the Internet, as further defined in this Agreement and in the Services Quotation. "Network" means the networks of routers, switches and communication channels that are owned or controlled by DWNI. "Remote Backup Service" means all of the computer equipment, software, networking hardware or other materials belonging to or furnished by DWNI. Additional terms are outlined in this document.

DWNI will begin setup and provisioning of Service only after it receives and accepts: 1) this Agreement signed by a Customer authorized representative; and 2) the Initial Payment due under Section 1.1 of the Terms and Conditions.

1. Service Fees and Billing. Customer agrees to pay the monthly charges outlined in the Remote Backup Service Pricing for applicable tier pricing, activation fees or otherwise due hereunder (collectively, Service Charges). Service Charges do not include shipping charges (if any), which shall be billed in addition to the Service Charges and shall be the responsibility of the Customer.
   1. Initial Payment. Upon DWNI's acceptance of and full execution of the Agreement, Customer shall be invoiced for Service Activation Charges, as identified on the Remote Backup Service Pricing. This fee shall be due upon Customer submission of thee executed Agreement to DWNI.
   2. Recurring Charges. On the 1st of the month following activation, and each month thereafter, DWNI shall bill Customer (in arrears) for the protected data stored on DWNI's servers based upon the applicable tier outlined in the Remote Backup Service Pricing.
   3. Payment. Customers whose data is expected to be less than 200 GB each month will be automatically billed by credit card. Customers larger than this will be invoiced. All Service Charges and other fees will be due in U.S. dollars within fifteen (15) days of the date of invoice. Late payments will accrue interest at a rate of one and one-half percent (1.5%) per month.
2. Resale. Customer cannot resell the Service to any third party without DWNI's prior written approval. In the event DWNI approves such resale or Customer resells Remote Backup Services (a) Customer remains responsible to DWNI for all of its obligations hereunder including but not limited to all Service Charges and liabilities arising out of or related to such third party usage, sites, communications, and the acts and omissions of such third party, (b) Customer shall indemnify DWNI for any third party claims arising out of the acts and omissions of such third party and (c) Customer and the party(s) to whom Customer resells any portion of the Services enter into written agreement(s) pursuant to which such party(s) agree to be bound by all terms and conditions in this Agreement. Any such resale agreement shall terminate automatically upon expiration or termination of this Agreement. Notwithstanding the foregoing, DWNI is not liable to any third party resale customer for any claims, losses or damages, (including consequential damages) resulting from that Customer's use of the Service.
3. Remote Backup Service. DWNI is responsible for maintaining the software, servers, and Storage Area Network (SAN) that provide the Remote Backup Service. DWNI is also responsible for providing the Internet connectivity at the DWNI data center which houses the servers and SAN. Customer is responsible for establishing and maintaining its desired backup(s), ensuring the correct data is backed up, testing the backups, and reviewing the available reports to ensure they are completing as desired.
4. Limited Service Level Agreement. DWNI will use commercially reasonable efforts to minimize Excess Packet Loss, Latency, Delayed Server Responsiveness and to avoid Downtime, as more fully set out below.
   1. Packet Loss and Latency. DWNI proactively monitors the aggregate packet transmissions and latency within its LAN/WAN and SAN. If Customer brings packet loss or latency issues to DWNI's attention, DWNI will use commercially reasonable efforts to determine the source of such Excess Packet Loss or Latency and to correct such problem to the extent that the source of the problem is on the Network.
   2. Remedy for Failure. If after two (2) hours of discovering or being notified of any Excess Packet Loss, Latency or SAN unavailability, DWNI fails to remedy such issue, DWNI will credit Customer's account the pro-rata Monthly Fees for such continuous Excess Packet Loss or Latency that follows the initial two (2) continuous hours, provided that all such credits will not exceed an aggregate maximum credit of Monthly Fees otherwise due from Customer for one (1) calendar month for failures in any one (1) calendar month.
   3. Customer Request Credit. Customer must notify DWNI within five (5) business days from the time Customer becomes eligible to receive a credit under this Section 6 to receive such credit. Failure to comply with this requirement will forfeit Customer's right to receive a credit.
   4. Limitation on Remedies. If Customer is entitled to multiple credits under this Section 6, such credits shall not be cumulative beyond a total of credits for one (1) calendar month in any one (1) calendar month in any event. DWNI will not apply a credit under Section 4.2 for any Excess Packet Loss, Latency or Server unavailability for which Customer received a credit under Section 4.1 or 4.2. Sections 4.3, 4.4 above state Customer's sole and exclusive remedy for any failure by DWNI to provide Services or adequate Service levels, including but not limited to any outages or Network congestion. DWNI's suspension or modification of Service in accordance with the terms of this Agreement shall not be deemed to be a failure of DWNI to provide adequate Service levels under this Agreement.
5. Disclaimer of Third Party Actions and Control. DWNI does not and cannot control the flow of data to or from the Network and 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 inaction caused by these third parties can produce situations in which Customer connections to the Internet (or portions thereof) may be impaired or disrupted. DWNI cannot guarantee that such situations will not occur and, accordingly, DWNI disclaims any and all liability resulting from or related to such events. In the event that Customer's use of the Service or interaction with the Internet or such third parties is causing harm to or threatens to cause harm to the Network or its operations, DWNI shall have the right to suspend the Service. DWNI shall restore Service at such time as it reasonably deems that there is no further harm or threat of harm to the Network or its operations.
6. No Warranty. DWNI makes no warranties or representations of any kind for the services being offered. The service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, noninfringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by DWNI or its agents or employees shall create a warranty. DWNI provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components. Under no circumstances shall DWNI be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties' use of the service to access your Web space, or to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with DWNI service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service.
7. Indemnification.
   1. By Customer. Customer will indemnify, defend and hold harmless DWNI, its directors, officers, employees, affiliates and customers (collectively, the DWNI Covered Entities ) from and against any and all claims, actions or demands brought against any of the DWNI Covered Entities alleging: (a) with respect to Customer's business: (i) infringement or misappropriation of any intellectual property rights; (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity; or (iii) spamming or any other offensive, harassing or illegal conduct or violation of the Acceptable Use Guidelines or Anti-Spam Policy; (b) any loss suffered by, damage to or injury of any other DWNI customer, any other Customer's equipment or any other Customer's representatives, employees or agents, which loss, damage or injury is caused by or otherwise results from acts or omissions by Customer, Customer representative(s) or Customer's designees; (c) any personal injury suffered by any Customer representative, employee or agent arising out of such individual's activities related to the Services, unless such injury is caused by DWNI's negligence or willful misconduct; or (d) any other damage arising from the Customer's business, (collectively, the Customer Covered Claims).
   2. By DWNI. DWNI will indemnify, defend and hold harmless Customer, its directors, officers, employees and affiliates (collectively, the Customer Covered Entities ) from and against any and all claims, actions or demands brought against any of the Customer Covered Entities alleging (i) infringement or misappropriation of any intellectual property rights relating to the Network or the Services (except to the extent such infringement is contributorily caused by Customer) or (ii) personal injury suffered by any DWNI representative, employee or agent, unless such injury is caused by Customer's negligence or willful misconduct (collectively, the DWNI Covered Claims).
   3. Notice Procedure. DWNI will provide Customer with prompt written notice of each Customer Covered Claim of which DWNI becomes aware, and, at DWNI's sole option, DWNI may elect to participate in the defense and settlement of any Customer Covered Claim, provided that such participation shall not relieve Customer of any of its obligations under this Section 11. Customer shall have the right to control the defense of any Customer Covered Claim. Customer will provide DWNI with prompt written notice of each DWNI Covered Claim of which Customer becomes aware, and at Customer's sole option, Customer may elect to participate in the defense and settlement of DWNI Covered Claim, provided that such participation shall not relieve DWNI of any of its obligations under this Section 11. DWNI shall control the defense of any DWNI Covered Claim.
8. Term. This Agreement is month-to-month and will commence on the date the Remote Backup Service was established and a "Welcome Letter" is sent. If a free demo was created prior to this Agreement, the commencement date will be the date the service is converted from a trial to a paid account in our system, unless sooner terminated as provided in Section 9 below.
9. Termination.
   1. Nonpayment. DWNI may suspend Service to Customer if any amount due hereunder is not paid in full within five (5) days after Customer is in receipt of notice of nonpayment. To reinstate Service, DWNI will require a reconnection fee of $100.00. DWNI may terminate this Agreement if any amount due hereunder is not paid in full within ten (10) days after Customer is in receipt of notice of nonpayment. If payment has not been made after thirty (30) days since notice of nonpayment, DWNI may take over ownership and/or sell such property to make up the Customer's balance due.
   2. Bankruptcy. DWNI may terminate this Agreement upon written notice to Customer if Customer 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.
   3. Acceptable Use Guidelines. Customer will at all times comply with and conform its use of the Service to the DWNI Acceptable Use Guidelines and DWNI Anti-SPAM Policy (set forth at DWNI's web site, https://support.digitalwest.net/KB/a136/what-is-the-aup-acceptable-use-policy.aspx), as updated from time to time. In the event Customer violates DWNI's (i) Acceptable Use Guidelines where DWNI determines in its reasonable discretion that there is potential harm to its Network or business, or (ii) Anti-SPAM Policy, DWNI shall have the right to immediately suspend Service. DWNI will provide notice and opportunity to cure, if and to the extent DWNI deems practicable, depending on the nature of the violation and availability of the Customer. DWNI, in its reasonable discretion, may re-enable the Service upon satisfaction that all violations have ceased and with adequate assurance that such violations will not occur in the future.
   4. For Other Cause. Except as otherwise stated, either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of the same.
   5. Effect of Termination. Upon termination of this Agreement: (a) DWNI will cease providing the Services; (b) except in the case of termination by Customer pursuant to Section 9.4, all of Customer payment obligations under this Agreement, including but not limited to monthly Service Fees through the end of the Term indicated on this Agreement will become due in full immediately.
10. 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.
11. Miscellaneous Provisions.
    1. 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.
    2. Confidentiality. Each party agrees that all information furnished to it by the other party, or information of the other party to which it has access under this Agreement, shall be deemed the confidential and proprietary information (collectively referred to as Confidential Information) of the Disclosing Party and shall remain the sole and exclusive property of the Disclosing Party (the party furnishing the Confidential Information referred to as the Disclosing Party and the other Party referred to as the Receiving Party). Each party shall treat the Confidential Information and the contents of this Agreement, including the Remote Backup Service Pricing, in a confidential manner, shall use such information only to the extent necessary to perform its obligations hereunder, and, neither party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; (iv) is independently developed by the Receiving Party; or (v) is required to be released by law or regulation, provided that the Receiving Party provide prompt written notice to the Disclosing Party of such impending release, and the Receiving Party cooperate fully with the Disclosing Party to minimize such release.
    3. Marketing. Customer shall allow DWNI to promote Customer's business through a joint press release, advertising, and other DWNI marketing literature regarding use of the Services subject to Customer review and approval.
    4. Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
    5. 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.
    6. Notices. Any required notice hereunder may be delivered personally or by courier; sent by confirmed facsimile; or mailed by registered or certified mail, return receipt requested, postage prepaid, to either party at the name and address on the signature page of this Agreement, 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 confirmed facsimile or mailed.
    7. Relationship of Parties. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
    8. Changes Prior to Execution. Customer represents and warrants that any changes to this Agreement made by it were properly marked as changes and that Customer made no changes to the Agreement that were not properly identified as changes.
    9. Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles.
12. General. This Agreement, together with the Remote Backup Service Pricing and DWNI policies referred to in 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 a written instrument signed 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 between a party's pre-printed business form and this Agreement, this Agreement will take precedence. In the case of international, federal, state or local government orders, Customer purchase order must contain the following language: Notwithstanding any provisions to the contrary on the face of, in attachments to, or on the reverse side of this purchase order, this purchase order is being used for administrative purposes only and this purchase order is placed under and subject solely to the terms and conditions of the DWNI Internet Services and Shared Hosting Agreement executed between Customer and DWNI.

End of DWNI Internet Services Agreement