VCC Cloud Backup Agreement

a)The Company and the Customer have agreed that the Customer shall during this Agreement and on the terms and conditions as stated herein take the VCC Cloud Backup from the Company.

b)The parties, in consideration of the Service Fees and VCC Cloud Backup provided under this Agreement, hereby agree and declare as follows

1.Definitions

In this Agreement:

“Company” means the company providing the VCC Cloud Backup and set out in the Order Form

“Customer” means the customer receiving the VCC Cloud Backup and set out in the Order Form

“Customer Equipment” means the equipment belonging to the Customer and on which the Customer will install and use the Third Party Software and will use to access the VCC Cloud Backup.

“Service Fee” means the fees payable by the Customer as set out in the Order Form and in accordance with Clause 5 and may comprise of Setup Fee and Monthly Fee

“Third Party Licensor” means the third party provider of the Veeam Cloud Connect software used by the Company to provide the VCC Cloud Backup under this Agreement in accordance with the third party licensor agreement.

“Commencement Date” means the date the Customer is handed the VCC Cloud Backup to use

“Initial Term” means the duration of months as described in the Order Form

“VCC Cloud Backup” means the services to be provided under this Agreement and as described in Clause 2

2.VCC Cloud Backup Service

The Company’s VCC Cloud Backup service allows the Customer to use the Company’s cloud repository as a target for backup copy jobs from the Customer Equipment. This VCC Cloud Backup is suitable for virtualised infrastructure using VMware or Microsoft Hyper-V that require backups to be stored outside of the Customer’s environment.

The company is responsible for:

  • Providing connection parameters required by the Customer to configure their local Veeam Backup and Replication server to connect to and use the VCC Cloud Backup
  • Setup of the VCC Cloud Backup repository to the size as set out in the Order Form
  • Providing the Cloud Connect software to accommodate the number of virtual machines as set out in the Order Form
  • Managing and monitoring the VCC Cloud Backup infrastructure
  • 24/7 Service Desk support
  • All maintenance to the VCC Cloud Backup including Cloud Connect software

The customer is responsible for:

  • Configuration of their local Veeam Backup and Replication Server and backup jobs
  • Providing any information required by the Company to configure the VCC Cloud Backup
  • Customer to ensure the requested VCC Cloud Backup repository is sufficient for the required number of Veeam restore points
  • Ensuring Customer keep within the requested number of Veeam Cloud Connect licences
  • Connectivity to the Service is over the Customer’s public internet only and may be subject to bandwidth charges
  • Customer responsible for the setup, management and monitoring of the backups  to include integrity and completeness of backups
  • Encryption of data that is backed up
  • Virus-scanning of data that is restored

Chargeable work to the customer:

  • Increasing the size of the VCC Cloud Backup repository capacity will result in additional costs
  • Increasing the number of virtual machines to be will require in additional costs
  • The Customer is responsible for all bandwidth charges associated with its use of the VCC Cloud Backup as set out in the Order Form.

3. Trial period and initial term

3.1           The Company shall use its reasonable efforts to provide the VCC Cloud Backup as described in Clause 2 with the specification in the Order Form to the Customer, and the Customer shall pay the Company the Service Fees subject to the terms and conditions set out in this Agreement until this Agreement is terminated under Clause 3.3 or Clause 4.

3.2           The Company shall provide the Customer with a 30 (thirty) day free trial (“Trial Period”) of the VCC Cloud Backup, and the Company accordingly shall provide the Customer a free period of use in respect of the Trial Period to begin on the Commencement Date.  The Customer may provide a termination notice to the Company during the Trial Period to terminate this Agreement without any further liability to the Customer.  If the Customer continues to use the VCC Cloud Backup after the Trial Period the Service Fees shall commence in accordance with the Agreement on the first day following the Trial Period.  The Service Fees shall become due and payable by the Customer on the first day following the end of the Trial Period.

3.3           Billing for the VCC Cloud Backup provided under this Agreement shall commence on the first day following the Trial Period and shall remain in effect during the Initial Term. This Agreement shall renew automatically for successive one year terms (each, a “Successive Term”) on the final day of the Initial Term and each Successive Term, unless either Party has given 3 months’ advance notice to the other Party that this Agreement shall terminate on the final date of the then current Initial Term or Successive Term.

4.Termination for Breach

4.1           If the Company fails to perform its obligations or otherwise breaches the terms or conditions of this Agreement and such default continues for a period of thirty (30) days after receipt of a written notice describing the default, then the Customer may terminate this Agreement upon notice to the Company.  If the Customer fails to perform its obligations or otherwise violates the terms or conditions of this Agreement and such default continues for a period of ten (10) days after receipt of a written notice describing the default, then the Company may terminate this Agreement, and the Customer shall pay to the Company promptly following such termination a termination fee equal to the aggregate Monthly Fees that would have been payable through the end of the then current Initial Term or Successive Term if this Agreement had not been terminated.

4.2           Upon termination of this Agreement, the Company shall delete all Customer data and software on the VCC Cloud Backup, within 30 days following the termination date of the VCC Cloud Backup. .  The Customer is responsible for migrating the data residing on the VCC Cloud Backup prior to the termination of this Agreement at the Customer’s expense.

5.Invoicing and Payment Terms

5.1           The Service Fees payable by the Customer in respect of the VCC Cloud Backup are as set out on the Order Form. These Service Fees do not include VAT or any other applicable sales taxes from time to time, which must be paid by the Customer when the Service Fees are due for payment.

5.2            Save as provided below the Customer shall pay all sums due in full without any set-off, deductions or withholding, within thirty (30) days of the date of the relevant invoice or at such times as set out on the Order Form.

5.3            If the Customer, in good faith, disputes the amount or appropriateness of a Service Fee, it shall notify the Company in writing, within 14 days of the date of receipt by the Customer of the invoice of such Service Fees and shall provide all documentation reasonably requested by the Company to assist in resolving such dispute. The Customer may withhold that part of an invoice which is subject to a bona fide dispute, only for so long as such amount remains subject to such a bona fide dispute. If the Customer fails to give notice within the 14 day period, the Customer is deemed to have accepted the Service Fees notified to it. The parties shall engage in good faith efforts to resolve any disputed Service Fees. If the dispute is resolved in favour of the Customer, the Company shall credit the Customer’s account against amounts owing, or, if the Agreement has since been terminated, repay the amount to the Customer.

5.4           The Company reserves the right to charge daily interest on all amounts not paid in accordance with this clause until payment is received in full at the annual rate equal to four (4) per cent above the base rate of Barclays Bank plc as current from time to time, calculated on a pro rata basis whether before or after judgment and this right to charge interest is without prejudice to the Company’s right to treat non-payment of sums due as a repudiatory breach of this Agreement.

5.5           The Customer is responsible for all bandwidth charges associated with its use of the Service as set out in the Order Form.

5.6           Third-Party Licensor software prices set out in this Agreement are subject to increase if the Company’s costs of acquiring rights to Third-Party Licensor software that forms a part of the VCC Cloud Backup to be provided by the Company to the Customer increase following the date of this Agreement, in which case the Company may, upon notice to the Customer, increase the price of the VCC Cloud Backup by  the proportionate amount equivalent to the costs of acquiring the rights to such Third-Party Licensor software.

6.LIMITATION OF LIABILITY and INDEMNIITES

6.1           THE COMPANY EXCLUDES ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCT OR SERVICE PROVIDED BY THE COMPANY, INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR SATISFACTORY QUALITY OR WHETHER AT COMMON LAW OR IN CONTRACT OR TORT OR BY STATUTE, OR OTHERWISE.  THE CUSTOMER EXPRESSLY ASSUMES THE RISK OF DATA LOSS, DOWNTIME AND EQUIPMENT DAMAGE RELATING TO THE USE OF THE COMPANY’S VCC CLOUD BACKUP.

6.2           The Customer expressly acknowledges that the Company may provide the Customer with a license or the right to use software under the terms of a separate license from a Third Party Licensor.  THE CUSTOMER EXPRESSLY ACKNOWLEDGES THAT ITS RIGHTS TO USE SUCH SOFTWARE IS LIMITED TO THE RIGHTS PROVIDED BY THE THIRD PARTY LICENSOR AND THAT ANY AND ALL CLAIMS THAT THE CUSTOMER MAY HAVE CONCERNING OR RELATING TO SUCH SOFTWARE PROVIDED TO THE CUSTOMER BY THE COMPANY, REGARDING THE PERFORMANCE OR THE FUNCTIONALITY OF SUCH SOFTWARE OR ANY SERVICES RELATED THERETO, SHALL BE BROUGHT EXCLUSIVELY AGAINST THE THIRD PARTY LICENSOR OF SUCH SOFTWARE AND NOT AGAINST THE COMPANY. THE COMPANY DOES NOT MAKE ANY WARRANTIES CONCERNING THE PERFORMANCE OR FUNCTIONALITY OF ANY SOFTWARE (INCLUDING OR ANY SERVICES RELATED THERETO) DISTRIBUTED BY THE COMPANY AND HEREBY DISCLAIM AND EXCLUDE ALL SUCH WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES FOR MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR SATISFACTORY QUALITY OR WHETHER AT COMMON LAW OR IN CONTRACT OR TORT OR BY STATUTE, OR OTHERWISE.

6.3           THE COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, MULTIPLE, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF REVENUE, LOSS OF PROFITS,, , DATA LOSS, OR COMPUTER FAILURE OR MALFUNCTION, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.4           Except in respect of the Company’s gross negligence or wilful misconduct, the Company’s total aggregate liability to the Customer and its affiliates under this Agreement shall not exceed the Monthly Fee.  The Company shall not have any liability to the Customer in respect of (a) the costs of reloading, replacing, or recreating any of the Customer’s lost or damaged information, data or software; or (b) the loss of the Customer’s information, data or software.

6.5           The parties agree that the indemnities given in this Clause 6 are conditional upon the parties informing each other as soon as reasonably practicable after becoming aware of any claims, on the parties mitigating their costs and losses and not compromising or settling any claims without the prior written consent of the party who has agreed to indemnify the other.

6.6           You shall fully indemnify Us against all costs, claims, demands, losses, damages, expenses (including, without limitation, reasonable legal expenses) and liabilities of whatsoever nature suffered or incurred by Us relating to: (i) any claim by a third party that the use or possession of Customer Equipment infringes the intellectual property rights of that third party or gives rise to any other liabilities of any nature to the Company based on the operation of the Customer Equipment or content of data or information held on or transmitted via or by it, or (ii) any claim by Customer’s clients against the Company

6.7           The Customer acknowledges that the limitations and exclusions of liability set out in this Clause 6 are reasonable and that the Company would not have been willing to provide the VCC Cloud Backup to the Customer for the Service Fees set out in this Agreement and on the other terms set out in this Agreement absent such limitations and exclusions.

7.General

7.1           Each party will treat the terms of this Agreement and any information received or obtained as a result of entering into or performing this Agreement as confidential save that either party may disclose such information if and to the extent such disclosure: (i) is properly required by any applicable law, securities exchange, regulatory or governmental body to which either party is subject or reasonably submits; (ii) is to a party’s professional advisors, auditors or any of that party’s employees, affiliates or contractors who have a need to know; or (iii) concerns information already in the lawful possession of the receiving party or in the public domain other than through the negligence or default of the recipient.

7.2           Any notice under the Agreement shall be in writing and signed by a duly authorised representative on behalf of the party giving it and may be served personally, by prepaid first class letter or sent electronically via email to the addresses stated on the Order Forms, on not less than ten (10) days’ prior written notice.  Any such notice shall be deemed to have been received, in the case of posted notice, 48 hours after posting and in the case of an email, at the time of transmission.  Any notice or other communication received on a day which is not a Business Day or after 5.00 p.m. local time on any Business Day shall be deemed to be received on the next following Business Day.

7.3           Nothing in the Agreement shall be deemed to constitute a partnership between the parties and neither party shall have authority to bind the other party without prior written approval of the other in each and every case.

7.4           If any term or provision or part of the Agreement, not being of a fundamental nature, is held to be illegal or unenforceable the validity or enforceability of the remainder of the Agreement shall not be affected.

7.5           Failure by either party at any time to require the performance of any provision of the Agreement shall not affect the right of that party to require full performance of it at any time thereafter and the waiver by either party of any breach of any such provision of the Agreement does not represent a waiver of any subsequent breach.

7.6           No amendment, modification or addition to the Agreement, nor any waiver of any of the terms of the Agreement, shall be valid unless made in writing and signed by duly authorised representatives of both parties.

7.7           Except where expressly provided to the contrary, the Agreement is not intended for the benefit of, and shall not be enforceable by any person who is not a party to it, under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself a trustee of the rights under it for the benefit of any third party.

7.8           The Agreement is personal to the Customer and the Customer may not assign, hold on trust or otherwise deal in any way with this Agreement or the benefit and burden thereof.  The Company may assign the benefit and burden of the Agreement and employ subcontractors to carry out any of its obligations under the Agreement.

7.9           The Agreement (and the documents referred to in it) represents the entire understanding between the parties in relation to its subject matter and supersedes all agreements and representations (unless made fraudulently) made by either party, whether oral or written.

7.10         The parties may, with prior written consent of the other party, issue a press release or make a public statement with respect to this Agreement.

7.11         The Agreement will be governed and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts.