Prestwood DATA SERVICES
REMOTE BACKUP SERVICE CONTRACT
By submitting your first payment to Prestwood Data Services, you agree to
the following terms and conditions (the "Agreement") governing your use of
the Prestwood Remote Backup Service (the "Service"), which shall be in effect
and binding for the entire duration of your receipt of the Service. If you
are entering into this Agreement on behalf of a company or other legal
entity, you represent that you have the authority to bind such entity to
these terms and conditions, in which case the terms "You" or "Your" shall
refer to such entity. If you do not have such authority, or if you do not
agree with these terms and conditions, you may not use the Service.
Prestwood Data Services, LLC ("Prestwood Data Services") agrees to provide
you the Service for any Electronic Data Storage Devices you choose to enroll
(hereinafter "Storage Devices") according to the Plan Option selected, in
accordance with the following Terms and Conditions.
Terms and Conditions
Term of Agreement
Your agreement with Prestwood Data Services shall be month to month.
Early cancellation for prepaid service is addressed in Section 4 below.
All charges for the Service under this Agreement shall be as
specified in the pricing schedule. The monthly fee for the Plan Option
you selected shall remain fixed for prepayments under the service plan.
Otherwise, Prestwood Data Services reserves the right to alter its fees
at any time. You will be provided with thirty (30) days' advance notice
of any changes.
An invoice will be sent to you each month. Payment is due within 30
days of receipt of invoice. If you have chosen to prepay for the
Service, your remaining credit will be reflected on each invoice. If you
fail to pay any outstanding charges for a period of seventy-five (75)
days after the date of the invoice, Prestwood Data Services may, after
giving ten (10) business days notice by email, at its option (a) cease
providing the Service and delete all data transmitted to it by you
and/or (b) refuse requests to restore your data. IN THE EVENT Prestwood
DATA SERVICES TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE
NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein
shall preclude Prestwood Data Services from pursuing other remedies
authorized by statute or otherwise.
Cancellation Rights and Charges
Month to month service can be cancelled at any time, with your final
invoice reflecting your final month of service.
In the event that you prepay for services, you will not be eligible
for a refund or credit in the event you decide to terminate Service.
If, during your first month, you decide that you do not want to
continue with the Service, you may cancel the Service on or before
the due date on the invoice and ignore the initial invoice.
Notice of cancellation should be sent to Prestwood Data Services and
should include company name, contact name, telephone #, address and
requested cancellation date.
5.1 Acts Beyond Prestwood Data Services' Control
Prestwood Data Services shall not be
deemed to be in breach of this Agreement if its obligations are
delayed or prevented by any reason of any act of God, war, fire,
natural disaster, accident, riots, acts of government, shortage of
materials or supplies, failure of any transportation or
communication system, non-performance of any of your agents or your
third party providers (including, without limitation, the failure or
performance of common carriers, interchange carriers, local exchange
carriers, internet service providers, suppliers, subcontractors) or
any other cause beyond its reasonable control.
5.2 Ownership Warranty
You warrant that you are the owner or
legal custodian of the data transmitted to Prestwood Data Services
pursuant to the terms of this Agreement and that you have full
authority to transmit said data and direct its disposition in
accordance with the terms of this Agreement.
" "Confidential Information" means any
information (without regard to the medium on which such information
may be recorded, whether written, visual, audio, graphic,
computerized or otherwise) concerning or relating to your property,
business and affairs and specifically includes data transmitted from
any Storage Device to Prestwood Data Services Servers. Confidential
Information shall be held in confidence by Prestwood Data Services
and shall be used only for the purposes provided for in this
Agreement. Prestwood Data Services shall use the same degree of care
to safeguard your Confidential Information as it utilizes to
safeguard its own Confidential Information. Prestwood Data Services
may comply with any subpoena or similar order related to data on the
server located within a Prestwood Data Services authorized facility,
provided that Prestwood Data Services notifies you promptly upon
receipt thereof, unless such notice is prohibited by law. You shall
pay Prestwood Data Services' reasonable charges for such compliance.
You agree to fully indemnify and hold
harmless Prestwood Data Services and its employees and agents for any
liability, cost or expense (including litigation expenses and
reasonable attorneys' fees) arising out of (i) Prestwood Data
Services' possession of your data, or (ii) your breach of the terms
and conditions of this Agreement.
5.5 Third Party Indemnification
You agree to fully indemnify and hold
harmless any resellers, suppliers or licensors for any and all
claims relating to the Service, or otherwise relating to the
Prestwood Data Backup Licensed Software, including, but not limited
to, any cause of action based on warranty, contract, tort, strict
liability, patent, equity or copyright infringement or
misappropriation of intellectual property.
5.6 Modification; Authority; Assignment
Prestwood Data Services may modify any
aspect of this Agreement upon 30 days prior notice. Should you wish
to terminate the Service as a result of such modification, you may
do so by sending a Termination Notice to Prestwood Data Services any
time prior to the effective date of such modification. You
acknowledge that you have the authority to enter in to this
Agreement on behalf of your company and that you may authorize other
individuals to purchase additional services. This Agreement binds
any of your authorized users, as well as your heirs, executors,
successors, and assigns and cannot be changed orally. As a condition
precedent to your installation of the Service, you must elect to
accept the End User License Agreement and this Service Contract. In
the event you elect not to accept such agreements, this Agreement
shall automatically terminate without further action or notice and
without liability to any party. CUSTOMER IS ADVISED TO CAREFULLY
REVIEW THE END USER LICENSE AGREEMENT AS WELL AS THIS SERVICE
CONTRACT FOR IMPORTANT INFORMATION REGARDING SERVICE REQUIREMENTS,
USAGE RESTRICTIONS AND SUPPORT FUNCTIONS RELATING TO THE SERVICE.
This Agreement may not be assigned by you (other than to an
affiliate which shall assume the obligations of its assignor by
written instrument) without the written consent of Prestwood Data
Services, which shall not be unreasonably withheld or delayed. This
Agreement may be terminated and/or assigned by Prestwood Data
Services to any authorized provider of the Service by giving 30 day
notice to you.
5.7 Governing Law; Jurisdiction
This Agreement is governed by the laws
of the State of Wisconsin, excluding its conflicts of laws
principles. You hereby submit to the exclusive jurisdiction of the
federal and state courts of the State of Wisconsin, Dane County;
provided, however, that Prestwood Data Services shall have the right
to institute judicial proceedings against you or anyone acting by,
through or under you, in other jurisdictions in order to enforce
Prestwood Data Services' rights hereunder through reformation of
contract, specific performance, injunction or similar equitable
This Agreement, the End User License
Agreement, and any supplemental agreements with respect to the
Service constitute the entire understanding between Prestwood Data
Services and you with respect to subject matter hereof. Terms and
conditions as set forth in any purchase order which differ from,
conflict with, or are not included in this Agreement, shall not
become part of this Agreement unless specifically accepted by
Prestwood Data Services in writing. You shall be responsible for and
shall pay, and shall reimburse Prestwood Data Services on request if
Prestwood Data Services is required to pay any sales, use,
value-added or other tax (excluding any tax that is based on
Prestwood Data Services' net income), assessment, duty, tariff, or
other fee or charge of any kind or nature that is levied or imposed
by any governmental authority on the Service.