Data Backup Agreement

DATA BACKUP AGREEMENT

Parties and Effective Date

Effective Date:

Recitals

WHEREAS, Service Provider is engaged in the business of providing electronic data backup, storage, and restoration services and possesses the technical expertise and resources necessary to perform such services; and

WHEREAS, Client desires to obtain data backup and related services from Service Provider on the terms and conditions set forth in this Agreement; and

WHEREAS, the parties intend for this Agreement to define the services to be provided, the compensation to be paid, the obligations of each party with respect to data handling and confidentiality, and remedies for breach.

Scope of Work

Service Provider will perform data backup, monitoring, and restoration services as described below. The essential elements of the scope are set forth in this Section; any additional tasks or material changes must be documented in a written amendment signed by both parties.

Payment Terms

Client shall pay Service Provider the fees for services as set forth below. All fees are exclusive of taxes unless otherwise specified. Invoices are payable in accordance with the payment schedule below.

Term and Termination

This Agreement commences on the Start Date and continues until the End Date unless earlier terminated in accordance with this Agreement.

Start Date:    End Date:

Termination for Cause: Either party may terminate immediately upon written notice if the other party materially breaches this Agreement and fails to cure such breach within days after receipt of written notice specifying the breach.

Confidentiality

Each party shall maintain as confidential all non-public information disclosed by the other party that is designated as confidential or that reasonably should be understood to be confidential ("Confidential Information"). Service Provider acknowledges that Client Data (as defined below) is Confidential Information of Client. Service Provider shall:

a) use Confidential Information only to perform its obligations under this Agreement; b) restrict disclosure to employees, contractors, and agents with a need to know and who are bound by confidentiality obligations at least as protective as those contained herein; and c) implement and maintain reasonable administrative, physical, and technical safeguards to protect Confidential Information from unauthorized access, use or disclosure.

For purposes of this Agreement, "Client Data" means all electronic data, records, files, software, or other information provided by or on behalf of Client to Service Provider for backup, storage or restoration.

Data Security, Access and Breach Notification

Service Provider shall implement and maintain technical and organizational measures designed to protect Client Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access. Service Provider will provide Client with administrative access controls and will maintain an access log.

Service Provider shall notify Client without undue delay, and in any event within days of becoming aware of a confirmed security incident materially affecting Client Data, and shall cooperate in reasonable mitigation and remediation efforts.

Limitation of Liability and Indemnification

Except for breaches of confidentiality, willful misconduct, fraud, or liability for bodily injury or death, neither party's aggregate liability for direct damages arising out of or related to this Agreement shall exceed the fees paid by Client to Service Provider under this Agreement in the twelve (12) months preceding the claim. In no event shall either party be liable for special, incidental, consequential, punitive, or exemplary damages.

Service Provider shall indemnify and hold Client harmless from third-party claims arising from Service Provider's negligent or willful acts in performing the services, subject to the limitation on liability in this Agreement.

Data Return and Deletion

Upon expiration or termination, Service Provider shall, at Client's election, return Client Data in a standard machine-readable format and permanently delete all copies of Client Data in Service Provider's possession within days, except where retention is required by applicable law.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of without regard to conflict of law principles.

Notices

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as either party may designate in writing.

Entire Agreement; Amendments

This Agreement, including any exhibits or schedules attached hereto and any written amendments signed by both parties, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements and understandings, whether written or oral. No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.

Miscellaneous Provisions

If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, joint venture or agency relationship. Client represents and warrants that it has the authority to provide and permit backup of the Client Data described in the Scope of Work.

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