Exhibit 10.1
DATA PROTECTION SERVICES AGREEMENT
This Services Agreement ("Agreement") is executed to be effective as of
___________________, (the "Effective Date"), by and between ASSURE DATA, INC., a
Nevada corporation ("Assure Data"), and _____________________, a
________________ ("Customer") (collectively, "Parties" or each a "Party"). This
Agreement specifies the terms and conditions applicable to the data protection
services to be provided by Assure Data to Customer under this Agreement.
1. Provision of Services / Customer Obligations. Assure Data agrees to provide
to Customer data protection services, which will include the following (the
"Services"): (i) local and offsite automated backup of Customer's computer
network data as specified by Customer on the annexed Exhibit A, (ii)
installation and maintenance of firewall protection software as specified
on the annexed Exhibit B, (iii) network monitoring for possible security
breaches and potential hardware failures as specified on the annexed
Exhibit C, (iv) installation and maintenance of virus protection software
as specified on the annexed Exhibit C, and (v) consulting services, as
requested by Customer in writing, related to special requirements of
Customer. In order to perform the Services, Assure Data will (i) deliver a
server to Customer's place of business, which server will backup the
network data selected by Customer, (ii) subject to Customer's obligations,
transmit Customer's data from the server to the offsite facility, and (iii)
monitor, as a computer software function, those transmissions. In order to
perform the Services, Customer must (i) supply a location for the server in
an appropriate and conducive environment accessible to Assure Data, and
(ii) provide appropriate uninterrupted transmission lines (DSL equivalent
or greater).
2. Pricing. For the provision of the Services, Customer shall pay Assure Data
the fee set forth on the annexed Exhibit D (the "Services Fee"), in
accordance with the payment schedule set forth on the annexed Exhibit D. In
addition to the Services Fee, Customer shall pay, upon execution of this
Agreement, the set up fee set forth on the annexed Exhibit D (the "Set Up
Fee"). If Customer is not completely satisfied with the Services within the
first thirty days of delivery of the server and commencement of the
provision of the Services, then Assure Data will refund the Set Up Fee to
Customer upon receipt by Assure Data of all Property (defined below).
Additionally, Customer can request that Assure Data send a representative
to Customer's place of business to install the Server. Should Customer
request assistance with the installation, Customer shall pay Assure Data
the additional fee set forth on the annexed Exhibit D. If, after sixty (60)
days from the Effective Date, provision of Services has begun but any one
or more of the Exhibits referenced in this Agreement have not been
completed, executed and/or exchanged between the Parties, then Assure Data
may, at its sole option, complete the Exhibit(s) using the information it
then has, give Notice to Customer and deliver the completed Exhibit(s) (the
"Assure Data Completed Exhibits"). Absent any response, objection or
modification in writing by Customer, within thirty (30) days after receipt,
the Assure Data Completed Exhibits shall be the agreement of the Parties.
3. Term and Termination. This Agreement is entered into as of the Effective
Date and shall remain in effect for one year thereafter, and will be
renewed automatically for successive one-year periods unless and until
terminated by either Party (i) upon thirty days prior written Notice to the
other Party, or (ii) if a Party determines that the other Party has
materially breached a provision of this Agreement, and, the defaulting
Party has not timely cured the material breach after Notice of the breach
and a ten day opportunity to cure the breach (such cure period commencing
upon receipt of Notice).
4. Ownership of Property. Customer hereby acknowledges and agrees that any
servers, other hardware, equipment, wiring, other ancillary products,
software, (wherever installed), and all associated intellectual property
rights of any of the foregoing, supplied by or utilized by Assure Data for
the delivery of the Services (collectively, the "Property") shall at all
times remain the property of Assure Data. Customer agrees to not remove any
of the Property from the location where any of the Property was initially
delivered without first obtaining the prior written approval of Assure
Data, which approval shall not be unreasonably withheld. The Property shall
only be used for the provision of the Services by Assure Data. Customer
shall not attempt to open, access, modify, derive, reverse engineer or
duplicate any of the Property and shall not attempt to incorporate any of
the Property into Customer's systems except as specifically allowed by this
Agreement. Customer shall accord the same degree of care with respect to
the Property as it accords to its own intellectual property and proprietary
rights. Customer agrees to use its best efforts to assure that the Property
is not damaged and shall remain liable to Assure Data for any damage or
loss of the Property. Assure Data will, within ten (10) days of written
Notice from Customer or ascertainment of a defect by Assure Data, replace
any defective Property, and will not charge Customer, so long as such
defect was not caused by Customer, its employees, agents or
representatives. Assure Data represents and warrants that it has and
retains title to and ownership of the Property that it utilizes
(notwithstanding that some of such Property may be obtained by license from
third parties). Customer represents and warrants that it has and retains
title to and ownership of any and all intellectual property rights
associated with its business and its computer network data and systems,
including but not limited to, all technology, designs, trademarks, patents,
and trade secrets (notwithstanding that some of such rights may be obtained
by license from third parties).
5. Data Recovery. If an event shall occur which results in Customer losing its
computer network data as specified on the annexed Exhibit A, Customer shall
contact Assure Data to retrieve the data. Assure Data will walk through
with Customer (either onsite or offsite as Assure Data determines) the
process of restoring the data.
6. Technical Support. Assure Data shall provide telephonic technical support
to customers who purchase the Services, which personnel shall be available
during normal business hours. Should Customer request or require onsite
technical support, the fee for such additional services will be negotiated
at that time.
7. Effects of Termination. Upon termination of this Agreement, (i) Customer
shall immediately deliver the Property to Assure Data, and (ii) upon
Customer's written request, Assure Data shall return or otherwise purge any
of Customer's data stored by Assure Data. Other than the obligations set
forth in this Section and any other obligations that accrued prior to any
termination of this Agreement, neither of the Parties shall have any
further obligations to the other.
8. Relationship of the Parties. Each Party is acting as an independent
contractor and not as an agent, partner, or joint venturer with the other
Party for any purpose. Except as provided in this Agreement, neither Party
shall have any right, power, or authority to act or to create any
obligation, express or implied, on behalf of the other.
9. Assignment. Customer shall not transfer or assign any of its rights or
obligations hereunder without the prior written approval of Assure Data,
which approval shall not be unreasonably withheld. Assure Data has the
right to transfer or assign this Agreement to any third party, provided
that such third party will continue to supply the Services.
10. Confidential Information. The Parties acknowledge that, from time to time,
either may become aware of certain proprietary information concerning the
other Party which that Party considers confidential and which is not in the
public domain. Confidential Information of either Party may or may not be
marked as such, and, might include strategic plans, marketing information,
technical details, and other facts. The Parties agree to take appropriate
steps to protect such Confidential Information from unauthorized disclosure
and shall not disclose it to any third party or use any Confidential
Information without the prior written consent of the other Party.
11. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE
BY EITHER PARTY TO THE OTHER PARTY, AND, ANY WARRANTIES WHICH ARISE BY LAW
AND WHICH CANNOT BE DISCLAIMED OR LIMITED, NEITHER PARTY MAKES ANY
WARRANTIES TO THE OTHER, EXPRESS OR IMPLIED. ASSURE DATA DISCLAIMS AND
EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR USE. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER
WARRANTY OR REPRESENTATION ON BEHALF OF ASSURE DATA CONCERNING THE
PERFORMANCE OF THE SERVICES OR THE MEDIA ON WHICH THEY ARE SUPPLIED.
12. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
SPECIAL, COLLATERAL, INDIRECT, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES ARISING OUT OF THIS AGREEMENT OR THE OBLIGATIONS HEREUNDER;
provided, however, this Section shall not limit any Party's right to
indemnification as set forth in this Agreement.
13. Indemnification.
a. Assure Data shall indemnify and hold Customer harmless from and
against any and all liability, claims, demands, proceedings, causes of
action, costs and expenses (including but not limited to any
reasonable attorney's fees) in respect of personal injury or property
damage (collectively, "Losses") from any breach of a representation or
warranty of Assure Data contained in this Agreement.
b. Customer shall indemnify and hold Assure Data harmless from and
against any and all Losses from any breach of a representation or
warranty of Customer contained in this Agreement or from any damage to
the Property.
c. Any Party seeking indemnification under this Agreement (the
"Indemnified Party") shall give the other Party (the "Indemnifying
Party") prompt Notice of any demand, claim, suit or proceeding
instituted against the Indemnified Party. Within ten (10) days after
receipt of the Notice, the Indemnifying Party shall take affirmative
action to defend the Indemnified Party and the Indemnified Party shall
give the Indemnifying Party any and all reasonable assistance
necessary for the Indemnifying Party to prepare and maintain a proper
defense. If, after the ten (10) day period, the Indemnifying Party has
failed to give the Indemnified Party adequate assurance of the
Indemnifying Party's intention or ability to defend the Indemnified
Party against such a demand, claim, suit or proceeding, then the
Indemnified Party may take whatever reasonable steps are necessary to
defend and protect its own interests, and shall invoice the
Indemnifying Party for any and all Losses incurred by the Indemnified
Party for which it is entitled to hereunder. The Indemnifying Party
shall then promptly reimburse the Indemnifying Party for any such
Losses.
14. General Provisions.
a. Notices. All notices shall be in writing, shall be served by personal
service, facsimile (receipt confirmed), or email (receipt confirmed),
with a copy by mail to the address of the receiving party set forth in
this Agreement (or at such different address as may be designated by
such party by written notice to the other party) (collectively,
"Notices"). Copies of any and all such Notices or demands by mail
shall be by certified mail, return receipt requested, or by nationally
recognized private express courier.
b. Governing Law, Jurisdiction, and Arbitration. This Agreement shall be
governed by and construed in accordance with the substantive laws of
the State of Texas, USA, excluding the choice of law rules. Each Party
agrees that any dispute, claim or controversy arising out of or in
connection with this Agreement shall be settled by final and binding
arbitration under the applicable rules of the American Arbitration
Association. The arbitration shall be conducted in Dallas, Texas, in
the English language. An arbitral award resulting from such
arbitration shall be enforceable in any court of competent
jurisdiction. The expenses of such arbitration shall be paid in such
proportion as the arbitrator(s) decides; however, in no instance shall
a prevailing Party be required to reimburse more than one-half of the
expenses of the arbitration. No arbitrator selected under this
Agreement shall ever be liable to either of the Parties to this
Agreement for any act arising out of his position as arbitrator,
unless it is proven that the arbitrator failed to act in good faith,
or was guilty of fraud, collusion or malfeasance in the execution of
his duties.
c. Force Majeure. Neither party shall be responsible for delays or
failure of performance resulting from acts beyond the reasonable
control of such party. Such acts shall include, but not be limited to,
acts of God, strikes, walkouts, riots, acts of war or terrorism,
failure of suppliers to perform, governmental regulations, power
failures, or other disasters.
d. Survival of Certain Provisions. Sections 4, 7, 10, 11, 12 and 13 of
the Agreement shall survive its termination or expiration.
e. Amendments. No supplement, modification, or amendment of this
Agreement shall be binding, unless executed in writing by a duly
authorized representative of each party to this Agreement.
f. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original, but all of which shall constitute
but one instrument.
g. Severability. In case any term, phrase, clause, paragraph,
restriction, covenant or provision contained in this Agreement shall
be held to be invalid or unenforceable, it is hereby agreed that the
same shall be deemed to be severable and shall apply to the maximum
extent permissible by law, and such holding shall not defeat or impair
the provisions hereof.
h. Entire Agreement. This Agreement constitutes the complete and entire
agreement of the parties and supercedes all previous communications,
oral or written, and all other communications between them relating to
the subject matter hereof. No representations or statements of any
kind made by either party, which are not expressly stated herein,
shall be binding on such party.
IN WITNESS WHEREOF, duly authorized representatives of the Parties have entered
into this Agreement effective as of the Effective Date, although not necessarily
executed on such date.
CUSTOMER: ASSURE DATA:
By:________________________________ ASSURE DATA, INC.
Printed Name:______________________ By:________________________________
Title:_____________________________ Xxxxxx X. Xxxxx, its President
Date:______________________________
Address:___________________________ Date:______________________________
___________________________________
___________________________________ 0000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile:_________________________ Facsimile: (000) 000-0000
E-Mail:____________________________ E-Mail: xxxxxxxx@XxxxxxXxxx.xxx
EXHIBIT "A"
COMPUTER DRIVE AND DIRECTORY SELECTIONS FOR AUTOMATED BACKUP
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Assure Data Inc. and _____________________________________________
Date ___________________
Server / Workstation Backup Selections
The following is a `tree based' list of servers and workstations (computers) to
be backed up by Assure Data Inc. The tree structure defines what computers and
what data will be backed up by the Delta Sync Remote Backup Service provided by
Assure Data Inc.
When defining what data is to be backed up, a standard `tree structure' is used.
The root of the tree is the named computer and Drive Letter. Each Drive Letter
on a computer must be listed individually. All hard disks both logical and
physical that are to be backed up in whole or in part must be listed.
Under each Computer and Drive Letter specific Directories, Sub Directories and
Files may be selected. At any level within the tree structure the word "ALL" may
be placed. When "ALL" is used then all Directories, Sub Directories and Files
under that branch will be defined as `selected for backup'.
After all the information is listed, number and initial the pages as required,
and initial under the last completed line.
Accepted by Assure Data Inc. Accepted by:_____________________________
____________________________ _________________________________________
Date________________________ _________________________________________
Server / Workstation Backup Selections for: ___________________________________
Page __ of __ Initials Assure Data _____ Initials (company) _____
Server / Workstation Directory &
Name or IP address Drive Letter Sub Directory Name File Name
_________________ _________ _____________________ ______________
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EXHIBIT "B"
FIREWALL OPTIONS
Firewall Options
Assure Data Inc. and _____________________________________________
Date: ___________________
The following is the list of ports and related services that are to be opened to
allow access from outside the local network including VPN and Internet
connections.
After all the information is listed, number and initial the pages as required,
and initial under the last completed line.
ACCEPTED: Accepted by:
Assure Data, Inc.
By:______________________________ By:______________________________
Printed Name:____________________ Printed Name:____________________
Date:____________________________ Date:____________________________
Initials Assure Data _____ Initials (company) _____
The Linux based firewall will close all ports except the following:
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Port # __________ Service _________________________________________
Page 1 of 1
EXHIBIT "C"
PRO-ACTIVE PROTECTION SERVICES
Assure Data Inc. and _____________________________________________
Date ___________________
The following is the list of special service options and descriptions for
additional services that are to be performed by Assure Data Inc. These may
include but are not limited to virus protection, vulnerability assessments,
bandwidth measurement and system performance.
After all the services are listed, number and initial the pages as required, and
initial under the last completed line.
Accepted by Assure Data Inc. Accepted by _________________________
_______________________________ _____________________________________
Date___________________________ Date_________________________________
EXHIBIT "D"
ASSURE DATA INC. PRICING
Assure Data Inc. and _________________________________________(company)
Date _______________________
Pricing for services described in Computer Drive and Directory Selections for
Backup (Backup) Pricing for services described in Firewall Options (Firewall)
Pricing for services described in Pro-Active Protection Services (P.A.P.S.)
One time setup fee:__________________
Installation Assistance Fee (if requested):________________________
Monthly service charges are pro-rated for the first month, with subsequent
services being billed at the monthly rate listed below, and due on the 1ST day
of each month.
A 5% billing discount is allowed for accepting the Monthly Invoice VIA email to
a specified individual.
Contact(s)
E-mail address of the specified individual _________________________
Name ___________________ ___________________ ___________________
Position _______________ ___________________ ___________________
Phone:___________________ ___________________ ___________________
Monthly service charge for Backup: ________________________
Monthly service charge for Firewall: _______________________
Monthly service charge for P.A.P.S: ________________________
Total monthly service charge: ________________________
Discount for E-mail billing: ________________________
Net monthly service charge: ________________________
Accepted by Assure Data Inc. Accepted by _______________________
Company
___________________________________ ___________________________________
Name Name
___________________________________ ___________________________________
Title Title
Date_______________________________ Date_______________________________
