Backup Contract by lrl16276

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									Fire2Wire (“F2W”) Fire2wire.com
Remote Backup Agreement

                                                                                              PLEASE KEEP PAGES 1-4, RETURN PAGE 5

 This Agreement (“Agreement”), effective _________, is between Fire2Wire (“F2W”) and _________________ (“Customer”). This
 Agreement sets forth the terms and conditions under which F2W shall provide Remote Backup Services (hereinafter “Service” or
 “Services”) to Customer.

 SECTION I

 1.    Terms of the Service
 A.     Service will commence on the Service Activation Date and will continue for the term specified in the applicable Sales Order.
        The term of the Service shall automatically renew for the specified term of contract in the commercial sales order form on the
        terms and conditions set forth herein, unless the terminating party delivers to the other party thirty days advance written notice of
        termination. Upon renewal under this provision, the price to Customer will be as stated in F2W’s price list in effect at the time of
        renewal for 1 year of Service.
 B.     The Service Activation Date shall be the date Customer has started backing up data to the F2W remote backup server.
 C.     BACKUP SERVICE: F2W agrees to offer to provide backup of the customer computer(s) data files per the customer
        requirements. F2W will store these data files for the subscriber for a period specified by the customer. Customer is responsible
        for selecting what data will be backed up and what interval the backup will occur and restoring data. Upon the request of the
        customer, F2W will locate and restore the customer files to the customer computer, within 48 hours. Customer, at an additional
        charge may also request emergency service, within 4 hours.

 2. Sales Orders
  A. Customer will be issued a Sales Orders following this agreement. Each Sales Order shall (i) be deemed to be a separate and
     independent agreement between the parties; (ii) incorporate all provisions of this Agreement as it may from time to time be
     amended and agreed to by the parties, including any appendices, exhibits, and other documents attached hereto; and (iii) be
     required initially, with each new feature package, and with each new location thereafter.
  B. Acceptance of this Agreement by F2W, and the provision of Services and/or Equipment, under this Agreement, and any
     applicable Sales Orders, is conditioned on completion of the Credit Verification Form, Exhibit B, and verification of the credit
     information provided therein. F2W will, at its discretion, check the credit history of the Customer prior to acceptance of any
     Sales Order. F2W reserves the right to reject any Sales Order based on the results of the credit check, or to impose additional
     terms and conditions, in accordance with its credit policies. In the event additional terms and conditions are needed, such
     additional terms and conditions shall be set forth in and amendment to this Agreement, or in a Sales Order issued under this
     Agreement.
  C. F2W may require an advance payment, progress payments, or other form of security as a condition of acceptance of any Sales
     Order.

 3.    Billing and Collections
  A.    For all charges, including installation charges and taxes, if applicable, F2W will (i) bill the Customer’s credit or (ii) send
        Customer an invoice. The first charge for Service will include: (1) the pro-rated charges for the remainder of the current month,
        (2) the total charges for the following month, (3) the usage charges for the previous month and (4) the installation charges, as
        applicable. Monthly recurring Service charges shall commence on the Service Activation Date, and shall be billed in advance of
        Service for months following the first month of service. Invoices are due and payable in full upon receipt. If any portion of
        payment is received after the late payment date, a monthly late charge may be charged to Customer as liquidated damages. The
        monthly late charge will be 1.5% of the entire outstanding balance for each month or portion thereof (18% per annum) for which
        the balance remains.
        In the event Customer fails to pay charges billed from F2W, or its billing agent, is unable to bill Customer, F2W reserves the right
        to bill outstanding sums in any of the alternative methods identified in paragraph 2A. Any disputes regarding billing shall be
        resolved in accordance with section 14.

 4.    Interruption of Service
        Customer understands and agrees that temporary interruptions may occur as normal and reasonable events in the provision of the
        Service. F2W agrees to exercise reasonable care to prevent such occurrences. Customer further understands and agrees that
        F2W has no control over third party networks. Customer may access in the use of the Service, and therefore, delays and
        disruption of other network transmissions are completely beyond the control of F2W.

 5.    Limitation of Liability
  A.    F2W shall make reasonable efforts to provide continuous, uninterrupted, expedient, and error-free Service to Customer. In no
        event shall F2W be liable to Customer or any other person for any special, incidental, consequential, or punitive damages of any
        kind, including without limitation, loss of profits, loss of income or cost of replacement services.
  B.    F2W’s liability for damages for interruptions of Services, or for mistakes, omissions, delays, errors and defects in the provision of
        the Services, shall in no event exceed an amount equal to the prorata charges to Customer for the period during which the
        Services are affected.
  C.    Any software provided hereunder is provided on an as-is basis. F2W makes no express or implied warranties (including those of
        merchantability or fitness for a particular purpose) with respect to the software provided.

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Fire2Wire (“F2W”) Fire2wire.com
Remote Backup Agreement


  D.    EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, F2W HEREBY DISCLAIMS ANY AND ALL
        WARRANTIES INCLUDING IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY AND PERFORMANCE.
  E.    F2W MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE
        SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES F2W MAKE ANY
        WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE
        SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED, OR
        OTHERWISE OBTAINED, THROUGH THE USE OF THE SERVICE, IS DONE AT CUSTOMER’S OWN RISK, AND
        THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER SYSTEM
        OR LOSS OF DATA WHICH RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
  F.    F2W MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH THE SERVICE, AND
        CUSTOMER UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT
        CUSTOMER’S OWN RISK.

 6.    Cancellation and Termination
  A.    In the event a ruling, regulation or order issued by a judicial, legislative or regulatory body causes F2W to believe that this
        Agreement may be in conflict with such rules, regulations or orders, the Customer shall either agree to modify this Agreement to
        conform to the terms of such rules, regulations or orders, or F2W may terminate this Agreement without liability.
  B.    Customer may terminate any Sales Order upon thirty days’ prior written notice to F2W. However, upon termination, Customer
        shall pay any applicable cancellation charges as set forth in subpart D of this paragraph. Customer shall not be bound to
        cancellation charges if F2W is in default of services within the definition of this agreement.
  C.    If Customer fails to pay any charge when due, including but not limited to installation charges or taxes, and such condition
        continues unremedied for a period of thirty days from the date written notice is given, or if Customer fails to perform or observe
        any other material term or condition of this Agreement, or if Customer provides false or inaccurate information which is required
        for the provision of the Service or that which is necessary to allow F2W to bill Customer for the Service, and such condition
        continues unremedied for thirty days from the date written notice is given, Customer shall be in default and F2W may terminate
        this Agreement. Upon such termination by F2W, Customer shall be liable for any applicable charges, including a Cancellation
        Charge, and all equipment will be scheduled to be removed.
  D.    A Cancellation Charge for early termination of Services will be applied to the final bill. The Cancellation Charge shall be in the
        sum of $99.00.

 7.    Assignment and Subcontracting
  A.    F2W may, at any time, assign its rights and delegate its duties under this Agreement. The assigning party shall give written notice
        of any such assignment.
  B.    F2W may subcontract any or all of the work and duties to be performed by it under this Agreement, but shall retain responsibility
        for the work subcontracted.

 8.    Governing Law
       This Agreement shall be construed in accordance with the laws of the State of California.

 9.    Modification of Terms and Conditions
       No amendment of this Agreement shall be valid unless in writing and duly executed by both parties.

 10. Force Majeure
       Neither F2W nor Customer shall be responsible for damages of for delays or failures in performance resulting from acts or
       occurrences beyond their reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, water,
       acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies, any law, order, regulation,
       ordinance, or requirement of any government or legal body or any representative of any such government or legal body; or labor
       unrest, including without limitation, strikes, slowdowns, picketing or boycotts, inability to secure raw materials, transportation
       facilities, fuel or energy shortages, or acts or omissions of common carriers.

 11. Use Limitations
       A. Customer agrees to comply with the rules, regulations and policies, including but not limited to, F2W's Acceptable Use Policy
          (located at “http://www.fire2wire.com/”), all policies applicable to F2W and all policies applicable to any network that is
          accessed through F2W. Violation of any such rules, regulations and policies, or any attempt to break security or to access an
          account which does not belong to Customer, shall be liable for any applicable charges, including cancellation charges.
       B. Nothing contained in this Agreement may be construed to convey to Customer any interest, title, or license in the user ID,
          electronic mail address, Universal Resource Locator or domain name used by Customer in connection with the Service.
       C. Customer understands and agrees that any attempt to break security, or to access an account which does not belong to
          Customer, shall be considered a material breach of this Agreement, and such breach may result in suspension or termination
          of the Service. Customer further agrees to immediately notify F2W of (i) any unauthorized use of Customer’s account and/or
          (ii) any breach, or attempted breach, of security known to Customer.




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Fire2Wire (“F2W”) Fire2wire.com
Remote Backup Agreement


 12. Software
       F2W will provide Customer with the Services software (“Client Software” or “Software”) as specified in the Sales Order, together
       with necessary user guides and other documentation. Use of the Client Software is subject to the Software licensing provisions set
       forth in the Agreement enclosed in the Client Software package.

 13. General
  A.    If any portion of this Agreement is found to be invalid or unenforceable, the parties agree that the remaining portions shall remain
        in effect.
  B.    If either party ever fails to enforce any right or remedy available to it under this Agreement, that failure shall not be construed as a
        waiver of any right or remedy with respect to any other breach or failure by the other party.
  C.    Customer agrees that the statue of limitations for the commencement of any arbitration proceedings against F2W in accordance
        with paragraph 14 shall be one (1) year from the date of the accrual of such claim or cause of action.
  D.    Any terms which by their sense and context are intended to survive expiration or termination of this Agreement shall survive.
  E.    This Agreement constitutes the entire agreement between the parties, and consists of the foregoing terms and conditions and the
        terms and conditions on the attachments to this Agreement, which are incorporated herein by this reference.
  F.    Notices and other communications shall be transmitted in writing by U.S. Mail postage prepaid and shall be effective four days
        after the mailing date. To F2W: Fire2Wire P.O. Box 100 Hughson Ca. 95326. To Customer: As set forth below, or as indicated
        in the Sales Order.

 14. Binding Arbitration
        Any dispute between the parties relating to the interpretation and enforcement of their rights and obligations under this Lease
        shall be settled and decided by arbitration conducted by the American Arbitration Association in accordance with the Commercial
        Arbitration Rules of the American Arbitration Association, as then in effect. The provisions of the Commercial Arbitration Rules
        of the American Arbitration Association shall apply and govern such arbitration except that the arbitration hearing itself shall be
        conducted in Modesto, California. The prevailing party shall be awarded reasonable attorneys’ fees, expert and nonexpert witness
        costs and expenses, and other costs and expenses incurred in connection with the arbitration, unless the arbitrator or arbitrators for
        good cause determine otherwise. Costs and fees of the arbitrator or arbitrators shall be borne by the non-prevailing party, unless
        the arbitrator or arbitrators for good cause determine otherwise.
        The award or decision of the arbitrator or arbitrators, which may include equitable relief, shall be final and judgment may be
        entered on it in accordance with applicable law in any court having jurisdiction over the matter. Any action to enforce the award
        or decision of the arbitrator shall be filed in the Superior Court of the State of California in and for the County of Stanislaus. In
        the event suit shall be brought by either party against the other in which this agreement is the subject of litigation, the party in
        whose favor final judgment shall be entered shall be entitled to have and recover of and from the other reasonable attorney’s fees,
        to be fixed by the court wherein such final judgment shall be entered.




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Fire2Wire (“F2W”) Fire2wire.com
Remote Backup Agreement


 REMOTE BACKUP SALES ORDER FORM
 F2W Internet Services is requested to provide “Customer” ______________________, with Remote Backup services as described
 below, subject to the terms and conditions of the Agreement between F2W and Customer. This Remote Backup Service section of the
 Sales Order is effective upon the date below and shall remain in full force and effect for the period checked below. (Terms are subject to
 availability) Customer will give F2W thirty days prior written notice for early termination of Service. If a Cancellation Charge is due, it
 will be applied to the final bill.

 Services, Rates and Charges –Remote Backup Services

  Period of service:                                                             [ ] One Year                  [ ] Two Years
                                              Installation                       1 Yr. Contract / Mo.          2 Yr. Contract / Mo.
  3 Gigs of compressed data                   $75.00                             [ ] $24.95                    [ ] $19.95
  12 Gigs of compressed data                  $75.00                             [ ] $49.95                    [ ] $44.95
  25 Gigs of compressed data                  $75.00                             [ ] $74.95                    [ ] $69.95
  Over 25 Gigs of compressed data             $75.00 CALL FOR QUOTE

                                                                                 First Month Fee               ___________________
                                                                                 Installation Fee              ___________________

                                                                                 Additional Charges            ___________________

                                                                                 Total Due                     ___________________

 This installation fee covers all installation of F2W software. There may be an extra charge on Mac Computers. It is agreed between the
 parties that if a facsimile of this document is signed and returned by facsimile transmission or copies to Fire2Wire, it shall be considered
 to be legally binding and enforceable as the original document and signature.

 Customer Authorization for Contract of Services:

  Customer Name:                 ___________________________________________________________________________

  Installation Address:          ___________________________                   City:       ______________          Zip:      __________
  Phone:                         ___________________________                   Fax:        __________________________________
  Primary Contact:               ___________________________                   Email:      __________________________________

  Signed:                        _______________________________________________________                           Date:     __________

 Customer Billing and Provisioning Information:

  Billing Name:                  ___________________________________________________________________________
  Billing Address:               ___________________________                   City:       ______________          Zip:      __________
  Phone:                         ___________________________                   Fax:        __________________________________
  Primary Contact:               ___________________________                   Email:      __________________________________

  Credit Card #:                 ___________________________                   Exp:        __________________________________
  Name on Card:                  ___________________________________________________________________________

  Signed:                        _______________________________________________________                           Date:     __________




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