Cloud Data Storage

Cloud Data Storage

managed service provider AGREEMENT

This CDS Appliance Based Service Agreement (the “Agreement”) is made by and between CDS Office Technologies with

offices at 612 S. Dirksen Parkway, Springfield, IL 62703 (“CDS”) and ______

(“Customer”) with offices at: ______.

This Agreement covers the provision by CDS for data protection, backup and recovery services to the Customer as defined below and incorporates the terms and conditions attached hereto.

EFFECTIVE Date AND TERM of Agreement: ______

This Agreement is effective upon the date signed, and shall remain in force for a period of ___ year(s). The Agreement automatically renews for a subsequent one-year term beginning on the day immediately following the end of the initial term, unless either party gives the other sixty days (60) prior written notice of its intent not to renew this Agreement.

BDR Unit:

Model Number: ______

(Appliances may be purchased or leased with approved credit)

Monthly Service Options:

1-Year Cloud Retention Infinite Cloud Retention Capacity-Based Cloud Storage Without Cloud Storage

Device Capacity(Sold only in increments listed)

500 GB 1 TB 2TB 3TB 4TB 6TB

10TB 12TB 18TB 24TB 36TB 48TB 60TB

Additional Offsite Storage overages:

For capacity based storage, additional offsite overages are billed in arrears at $125.00/TB/month.

Fees:

Interim Service Fee: $______(pro-rated service fee from Effective Date to first full month)1

Monthly Cloud ServiceFee: $______

Monthly Device Lease Fee2: $ ______or Device Purchase Amount3: ______

Total Monthly Fee: $ ______(Cloud Service Fee + Device Lease)2

Amount Due at Inception: $ ______ (Total Monthly Fee + any interim service fee)

Freight Charges:If equipment is purchased, freight charges will be invoiced separately and paid by the Customer.

(1)For purposes of billing, the Effective Date is the date this Agreement is signed by the Customer plus five (5) days. In addition to the charges outlined above, Customer agrees to pay for shipping of the device and a monthly ‘Overage Fee’ representing the amount of storage used by the Customer over and above the Offsite Storage Capacity provided for above. Overages will be billed in arrears.

(2)If the Customer cancels the MSP agreement prior to the end of the lease term, the Customer will be responsible for the remaining term lease payments and then become eligible to exercise either the dollar buy-out or fair market value (FMV) option. MSP software is not included in the buy-out or purchase and must be de-installed.

(3)Equipment may be purchased separately to eliminate monthly leasing costs.

THE AGREEMENT, INCLUDING THE ATTACHED TERMS AND CONDITIONS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS, AGREEMENTS AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN. IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF ANY OTHER PURCHASE OR SALES DOCUMENT AND THE TERMS AND CONDITIONS OF THE AGREEMENT, THE AGREEMENT SHALL CONTROL. THE AGREEMENT MAY BE MODIFIED, REPLACED OR RESCINDED ONLY IN A WRITING SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF EACH PARTY.

ATTACHMENT 1

CDS APPLIANCE BASED SERVICE TERMS AND CONDITIONS

These Terms and Conditions shall apply to the CDS Appliance Based Service Agreement between CDS and Customer to provide the Service identified herein and in the Agreement (the “CDS Service”). The Agreement and this Attachment are hereinafter referred to as the Agreement.

Rev 7_16

1. Provision of Service.

1.1Subject to the terms and conditions of the Agreement, CDS hereby agrees to provide to Customer during the term of this Agreement the CDS Service, consisting of local and/or off-site automated data protection, backup, and recovery services described in the Agreement in connection with Customer’s use of the BDR Unit and Software. CDS will provide access to the Customer’s backup data for restoration and recovery purposes on a continuous basis. CDS reserves the right to physically ship the backup data on disk or other media to the Customer’s site.

1.2CDS agrees to hold confidential all of Customer’s data in its possession exercising the same degree of care that a company utilizing industry accepted business practices would exercise with similar data of its own. CDS will implement reasonable security and environmental precautions to promote an appropriate level of system availability and data protection and recovery.

1.3Remote Storage provided at two high availability Data Centers in Pennsylvania and Utah. Highly redundant storage in multiple redundant cluster nodes at two (2) redundant bi-coastal data centers. (i) Connectivity provided by multiple providers with automatic failover capabilities. (ii) Facilities power is supplemented with both battery backup and diesel generation capabilities. (iii) Full physical security at each facility including global biometric authentication access methodology to track all authenticated data center personnel and prohibits the entry of any unauthorized persons. (iv) Fire suppression and environmental control provided.

1.4Remote Storage and Base Remote Backup Image Creation (i) Customer’s data is stored (in encrypted form) in two (2) secure off-site data centers, located in Pennsylvania and Utah. (ii) The initial backup will be sent via a SATA II drive to the primary remote storage facility. There is approximately a 2-week turnaround time to seed the initial backup off-site. Incremental backups will occur during the off-site seeding process and will collapse into the main backup once the off-site transfer is complete. Applicable fees will be $______, unless otherwise stated.

2. Provision of BDR Unit.

2.1Subject to the terms and conditions of the Agreement, CDS hereby agrees to provide to Customer the BDR Unit identified in the Agreement, solely for Customer’s own internal business purposes and subject to the restrictions herein. The BDR Unit is embedded with proprietary software subject to the terms and conditions of this Agreement, CDS hereby grants to Customer a non-exclusive, non-transferable license to use the CDS Software as installed on the BDR Unit and solely for Customer’s internal business purposes and in accordance with the Agreement.

2.2Customer shall not, and shall not have others, modify, customize, reverse engineer, reverse assemble or reverse compile the BDR Unit or Software or any part thereof. In the event that Customer believes that the BDR Unit or Software is not functioning according to standard written specifications, Customer shall contact CDS immediately and inform them of the problem.

2.3Customer acknowledges and agrees that it is acquiring only the right to use the CDS Software during the term of the Agreement. You shall not retain rights of ownership of the Software, all copyrights and other intellectual property rights vested in the Software, and all modifications to the Software (including derivative works), and changes to the Software made by CDS or its affiliates under the Agreement. Customer agrees that, as between the parties, the Software (in whole or part) shall remain the exclusive property of CDS’ technology partner and may not be copied or used except as expressly authorized by this Agreement. Any rights not expressly granted to the Customer under the Agreement are retained by CDS’ technology partner.

3. Customer Obligations.

3.1Customer will perform regular backups using the Software which is embedded in the BDR Unit to hardware that CDS maintains at one of CDS’ Technology partners’ data centers. Customer acknowledges that CDS’ provision of the CDS Service does not include the requirement or option to purchase the CDS BDR Unit or any other hardware utilized in connection with the service, during or after the termination of the Agreement. Customer will report any errors in executing such backups promptly by phone or e-mail to CDS. Customer will arrange for and maintain communication services used to connect to the Data Center. Customer is responsible for any communication costs associated with the connection between Customer’s site and the Data Center. Customer shall implement reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery.

3.2Customer covenants and agrees that Customer shall not place any data in the Datacenter that (i) infringes the intellectual property rights or privacy rights of any third party, (ii) violates any law, statute, ordinance or regulation, (iii) is defamatory, libelous, unlawfully threatening or harassing, (iv) is obscene, or contains any viruses, Trojan horses, worms, time bombs, cancel bots or other programming routines that are intended to or have the effect of damaging, detrimentally interfering with, surreptitiously intercepting or expropriating any system, data or personal information. Customer shall defend, indemnify and hold CDS and its technology partners harmless against any third party claim, suit or proceeding alleging any breach of the covenants contained in this Section.

3.3Loaned Equipment - Customer agrees that the BDR unit utilized by CDS in the execution of this service shall remain the property of CDS. Customer further agrees to cease the use of any technology that remains the property of CDS and return the BDR unit and/or applicable license keys no later than 30 days upon termination of this agreement. If the BDR unit is stolen, damaged or destroyed, the Customer must pay current market prices at the time of the loss for a replacement unit. If the unit is stolen, damaged and/or destroyed, outside of a typical disaster recovery scenario, applicable fees for the BDR replacement will be left to the discretion of CDS.

4. Payment Terms.

4.1Customer shall pay to CDS the amount described in the Agreement on the Effective Date or as set forth in the Agreement. Customer shall pay any fees for overage usage or

additional services it orders, beyond those ordered at the time this Agreement is entered into, within thirty (30) days of the applicable CDS invoice date.

4.2CDS reserves the right to charge a service fee of 1.5% per month on late payments.

4.3Customer shall pay all fees and charges set forth in the Agreement exclusive of any sales, use, excise, value-added, or similar taxes, and exclusive of any duties or fees payable on the delivery of the CDS Service in countries other than the United States. Any such taxes, duties, or fees shall be added to the CDS invoice or paid directly by Customer.

5. Warranty Disclaimer and Limitation of Liability.

5.1Customer acknowledges that it is responsible for determining whether the CDS Service is appropriate for Customer’s data protection needs. CDS’ sole warranty is that the CDS Service shall substantially comply with any standard specifications provided in writing by CDS. Customer's sole and exclusive remedy, and CDS’ entire liability under this Agreement shall be limited to the following: (i) CDS shall use reasonable commercial efforts to correct any substantial non-compliance with the above warranty; (ii) if such non-compliance cannot be corrected after using commercially reasonable efforts, Customer may terminate the Agreement and receive a refund of any amounts paid since the time of the non-compliance.

5.2EXCEPT FOR THE LIMITED WARRANTY IN SECTION 5.1 ABOVE, CDS MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE CDS SERVICE, THE BDR UNIT OR THE CDS SOFTWARE, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFIRNGEMENT. CUSTOMER ACKNOWLEDGES IT HAS RELIED ON NO WARRANTIES WITH RESPECT TO THE CDS SERVICE, THE BDR UNIT OR THE CDS SOFTWARE IN ENTERING INTO THIS AGREEMENT.

5.3IN NO EVENT WILL CDS OR ITS TECHNOLOGY PARTNERS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE AGREEMENT. IN NO EVENT SHALL CDS ’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT EXCEED THE AMOUNT OF FEES AND AMOUNTS PAID BY CUSTOMER UNDER THE AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAID UNDER THE AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT CDS WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

5.4Notwithstanding the Warranty Disclaimer and Limitation of Liability outlined above, the Customer will be allowed to return the appliance and discontinue service at no charge at any time for any reason within thirty (30) days from receipt of unit.

6. Term and Termination.

6.1The Agreement shall have the term set forth in the first page of the Agreement. The Agreement shall automatically renew at CDS’S then current rates for one-year period, unless Customer provides CDS within 60 days’ written notice of termination.

6.1.1Either Party may terminate this Agreement (i) upon the occurrence of a material breach of a material provision of this Agreement (other than a failure to pay) if such breach is not cured within 30 days of written notice; (ii) upon the other party’s filing a petition in bankruptcy, being adjudicated bankrupt, not dismissing a petition in bankruptcy that is filed against it within 30 days of filing, the other party becoming insolvent, the other party making an assignment for benefit of creditors, or a receive is appointed for the other party.

6.1.2In the event of a failure by Customer to comply with its payment obligations, CDS may terminate this Agreement and the licenses granted hereunder upon 5 days’ notice of breach and Customer’s failure to pay all amounts due and outstanding.

6.2Upon termination, Customer shall promptly pay any amounts due and owing to CDS (if equipment is leased, Customer will pay remaining term of equipment lease commitment), return the BDR Unit and the Software as instructed by CDS and at CDS’ expense, and if Software has been installed by CDS on a computer device other than the BDR Unit, de-install the Software and at CDS’ Technology Partners’ sole discretion, either destroy or return all Software copies and documentation. Customer shall certify to CDS in writing within five (5) business days of a termination notice that Customer has complied with this Subsection 6.2 and that no CDS Software is being used or retained on any computer or storage device.

6.3Customer agrees that if Customer were to fail to timely return the BDR Unit and Software, the resulting damages to CDS would be difficult to ascertain. Customer therefore agrees that Customer shall pay as liquidated damages to CDS without further proof of damages, the amount equal to 6 months of fees payable under this Agreement if Customer fails to return the BDR Unit and CDS Software within thirty days of termination of this Agreement. Regardless of whether Customer pays such liquidated damages, CDS’ Technology Partners’ shall maintain all rights of ownership with regard to the BDR Unit and the Software and shall be entitled to seek injunctive relief provided under Section 7.3 without the need to post a bond.

6.4The provisions of Sections 1.2, 2, 3, 4, 5, 6 and 7 shall survive the termination of this Agreement.

7. General.

7.1Neither the Agreement nor any license hereunder may be assigned (whether by operation of law or otherwise) by Customer without CDS’ prior written consent. CDS may assign this Agreement without the consent of Customer.

7.2Customer agrees that during the term of this Agreement and for a period of two years after its expiration or termination, Customer will not solicit or encourage any CDS employee or consultant to leave the employ of CDS.

7.3Except as provided in Section 5, the parties’ rights and remedies under the Agreement are cumulative. CDS shall be entitled to seek injunctive relief (without the requirement of posting a bond) with regard to any breach by Customer (other than a breach for failure to pay).

7.4The Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof. The Agreement may be modified only in writing signed by both parties. Waiver of any breach or failure to enforce any term of the Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. If any provision of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this agreement.

7.5Neither party shall be held liable for any damages or penalty for delay in the performance of its obligations hereunder (other than Customer’s obligation to make payments under the Agreement) when such delay is due to the elements, acts of God or other causes beyond its reasonable control.

7.6The BDR Unit and the Software are subject to the customs and export control laws and regulations of the United States and may be subject to the customs and export laws and regulations of the country in which the products are manufactured or received. If the BDR Unit Software is licensed for use outside of the United States the Customer agrees to comply fully with all relevant export laws and regulations of the United States and the country or territory in which the Software is used, to assure that neither the Software, nor any direct product thereof, are exported, directly or indirectly, in violation of such laws. Under United States law, the BDR Unit and Software may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction.