Terms and Conditions

IronGate Server Management & Consulting, a division of 6311521 Canada Limited. (a company registered in Ontario, whose registered office is at 141 Pretoria Ave, Suite 206, Ottawa, ON K1S 1X1) (”the Company”), offers to provide ______________, of ___________, ______, limited use of IronGate’s Background Backup data protection service, subject to the following express terms and conditions (”the Terms”).

Please read the following terms and conditions (”the Terms”) carefully.  In the Terms, “we”/”us”/”our” means the Company, and “you”/”your”/”yours” means you, the client.

Your installing of CrashPlan software on your computer(s), and the creation of a user account on the Background Backup servers will be deemed your acceptance of the Terms and shall, together with the Terms, constitute the contract between the parties (”the Contract”). 

No variation to the Terms shall be binding unless agreed in writing and signed by duly authorized representatives of both parties.

Definitions

“Fee” means the Fee per computer for the Services

“Services” means the supply by us to you of the Software and related support services as set out in Clause 1.2 under the Terms

“Software” means CrashPlan and CrashPlan PRO software, manufactured by CodeFortyTwo

1. The Services

1.1 We shall supply the Services to you, and you shall pay the Fee for the same subject to the Terms.

1.2 The Services shall comprise the following:
• installation and configuration of the Software on your computer(s), either:
- by our engineer, or by our approved subcontractor, providing you with assistance during a telephone-supported installation, or
- by our engineer, or by our approved subcontractor, controlling the system in question over the internet or on site; and

• the setting up by yourself, or our engineer, or our approved subcontractor, of a username and password for you to use with Background Backup (your account), and selection of your files to backup; and

• password protection, compression and copying (backing up) of your files to one or more IronGate Background Backup server(s).

2. Period of agreement

The Terms shall apply to the provision of Services by us to you and will continue until the Contract is terminated in accordance with Clause 14 or Clause 15 or by mutual consent.

3. Independent contractor status

We are engaged as an independent contractor. Nothing herein will be deemed or construed to create a joint venture, partnership, or agency between the parties for any purpose whatsoever, or render us an agent or partner of yours, or vice versa.

4. Company obligations / Service Level Agreement

We shall:
• provide, to authorized and pre-registered individuals and systems, electronic access to the Background Backup Server(s), at specified internet addresses as provided by us from time to time, 24×7x365, 99% of the time;

• provide, within 4 hours, Monday to Friday, excluding Statutory holidays, between the hours of 8:00 and 20:00 Ottawa-local time, to authorized and pre-registered individuals, access to telephone or internet-based technical support services, in the event that you are unable to backup your files.  After hours support may also be available, and is delivered on a best efforts basis only, unless otherwise contracted and paid for;

• hold secret and confidential all files, data and information selected for protection, by securing and limiting access to, both electronically and physically, all servers, storage devices and archives holding your data;

• remove and destroy, upon deactivation of protection for any one or more of your systems, or the deselection of any previously selected volume(s), folder(s) or file(s), or in a reasonable amount of time after your written direction to us to do any of the above, all known archives of the subject data and files.

5. Client obligations

You shall:
• co-operate with us as reasonably necessary in order to enable us to provide the Services;

• be responsible for regularly monitoring your backup reports and checking whether your files are being backed up to your satisfaction;

• be responsible for notifying us in the event that your files are not being backed up to your satisfaction.

6. Subcontracting

You shall not assign, transfer, or charge any of your rights or obligations under the Terms, but we may engage sub-contractors to undertake the Services provided that we shall at all times comply with and fulfill our obligations under the Terms.

7. Fee

7.1 The Fee for optional on-site set-up, installation and initial snapshot (seeded backup) capture, where available, shall be $149 per computer, regardless of capacity.

7.2 The monthly subscription Fee per computer shall be payable at one of the following rates:

• $14.90 per workstation, with 10 GB fair use estimate

• $29.90 per workstation, with 25 GB fair use estimate

• $129.90 per server, with 150 GB fair use estimate 

for continued usage above the fair-use amounts, a Fee of $0.99 per month is charged per Gigabyte used, or portion thereof

7.3 The Fee shall be exclusive of all applicable taxes.

7.4 We reserve the right to periodically review the Fee and charges, and shall give you no fewer than 30 days’ written notice of any changes to the same made as a result of such review.

8. Payment

8.1 We shall invoice you monthly, in advance of the Services.

8.2 Payment of the Fee and applicable taxes shall be made by you to us in strict accordance with the credit terms listed on each invoice.

8.3 In the event that you fail to pay an IronGate invoice within 40 days from date of issue, we reserve the right to deactivate your account without notice.

9. Client alterations to facilities or equipment

9.1 In the event that you alter, interfere with, or damage in any way whatsoever any facilities, including but not limited to equipment or software configured, or set up, and/or maintained by us without our express prior written consent, you shall do so at your own risk and expense.

9.2 We shall not be liable or responsible in any way whatsoever for problems or damage caused either directly or indirectly as a result of your alteration of or interference with facilities, equipment, and/or your network or system.

10. Data restoration

10.1 Unlimited self-managed restores are included in the base service arrangement, at no additional cost.  This includes restores initiated and managed from a locally installed and authenticated Background Backup client application, as well as those initialed and managed through our web portal.

10.2 In the event that you require us to restore your data onto a hard drive or DVD to be express delivered back to you, for reasons of size, expediency or preference, you shall be liable to pay a fee of $99 exclusive of applicable taxes and you shall be invoiced accordingly. Reasonable charges for the media or drive of choice is not included within the fee for the data restoration, but shall be charged and invoiced to you as an additional item.

10.3 Unless a corporate line of credit has been arranged in advance, subject to our discretion and approval, payment for data restoration and any media or hard drive(s) requested shall be made by you to us prior to shipment of media to you.

11. No warranty

We do not warrant that Background Backup, CrashPlan or CrashPlan PRO products or services will meet your requirements or that the operation of the same will be uninterrupted or error-free. Background Backup, CrashPlan and CrashPlan PRO products are provided by us “as is” and all expressed or implied warranties, description, representations and conditions as to fitness or suitability for any purpose in respect of the Services, including in respect of any product, including but not limited to any item of software provided by us, are expressly excluded. For the avoidance of doubt, we accept no liability as to the suitability for the performance of the Services, or of any product manufactured, sold or supplied by IronGate, CodeFortyTwo or CrashPlan.

12. Limitation of liability

12.1 We shall not be liable to you (excluding for personal injury or death, fraud, or willful default) for any loss or damage that may result (including without limitation, any direct, indirect, punitive or consequential loss or damages, or any loss of income, profits, goodwill, data, contracts, and whether in tort (including without limitation negligence), contract or otherwise) in connection with the Services.

12.2 Subject to Clause 12.1, our liability to you shall at all times be limited to the amount paid, if any, by you for the Services.

13. Force majeure

We shall not be liable to you or deemed to be in breach of the Terms by reason of any delay in performing or any failure to perform any of our obligations in relation to the Services, if the delay or failure was due to any cause beyond our reasonable control, including, but not limited to, Acts of God, explosion, flood, tempest, fire or accident, war or threat of war, riot, sabotage, insurrection, civil disturbance, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any government, parliamentary, or local authority, strikes, lockouts or other industrial action or trade disputes (whether involving our employees or those of any third party), I.T. viruses, difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.

14. Termination

14.1 The Contract may be terminated by either party giving to the other 30 days notice in writing (which may include email) and without the need to give reasons.

14.2 Neither party shall have any right against the other arising out of or in consequence of such termination, provided that the termination shall not affect any prior right the parties may have against each other under the Terms.

14.3 In the event that you cease, or threaten to cease, or dispose of or threaten to dispose of all or a substantial part of your business, we shall be entitled to terminate the Contract forthwith.

14.4 Either party may terminate the Contract with immediate effect in the event of any material breach of the Terms by the other party. Such termination shall not affect any right which the party terminating the Contract may have against the other as a consequence of the breach by the other party.

14.5 In the event of any material breach of the Terms the party not in breach may, as an alternative to immediate termination of the Contract, serve notice on the party in breach requiring the breach to be remedied (if capable of remedy) within the period specified in the notice, not being longer than 7 (seven) days. If the breach has not been remedied before the expiry of the specified period the party not in breach may terminate the Contract under Clause 14.4

14.6 Adoption of the alternative described in Clause 14.5 above by a party not in breach shall not prejudice the rights of that party in respect of any further breach by the other party arising before the date of termination of the Contract.

14.7 On the termination of the Contract for any reason you shall provide such assistance as we reasonably require, including delivery to us, or to such person as we notify to you in writing, of all documents and data in your custody or control relating to the performance of our obligations under the Terms.

15. Summary termination for insolvency and other reasons

15.1 You shall notify us in writing immediately upon the occurrence of any of the following events:

15.1.1 where you are an individual, a petition is presented for your bankruptcy or a bankruptcy order is made against you or you make any arrangements with or for the benefit of creditors, or makes any conveyance or assignment for the benefit of creditors; or

15.1.2 where you are a firm or a number of persons acting together in any capacity, if any event in Clause

15.1.1 occurs in respect of any partner in the firm or of any of those persons; or a petition is presented for you to be wound up; or

15.1.3 where you are a company, if the company passes a resolution for winding up or the court makes an administration order or winding up order, or the company makes a composition or arrangement with its creditors, or an administrative receiver, liquidator, receiver or manager is appointed by a creditor or by the court, or possession is taken of any of its property under the terms of a floating charge.

15.2 On the occurrence of any of the events described in Clause 15.1 we shall be entitled to terminate the Contract with immediate effect. Such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue to us.

16. Rights and obligations on termination

Following the termination of the Contract (whether by notice or otherwise) either party shall not have any further obligations or rights arising out of the Contract thereafter except in respect of such provisions as are expressed to operate on or after termination including but not limited to Clauses 14 and 15.

17. Assignment

You shall not assign, transfer, or charge any of your rights or obligations under the Terms, in whole or in part.

18. Amendments and variation

The provisions of the Terms may be varied or amended only by agreement in writing between persons duly authorized by the parties.

19. Waiver

No delay or failure by either party to exercise any of its powers, rights or remedies under the Terms will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing.

20. Notices

All notices to be given under the Terms will be in writing (which may include email) signed (digitally, in the case of email) by or on behalf of the party giving it and shall, unless delivered personally, be left at, or sent to, the address of the recipient, or to any other address the recipient may designate by notice in accordance with this Clause. Notices may be delivered personally by hand, by first class pre-paid letter, by facsimile transmission, or by email. Any notice given under the Terms shall be deemed served if delivered personally, on delivery; if sent by first class post, two clear days after the date of posting; and if sent by facsimile or e-mail, when despatched.

21. Severability

If any part of the Terms is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable, then such part will be severed from the Terms, the remainder of which will continue to be valid and enforceable to the fullest extent permitted by law.

22. Entire agreement

The Contract constitutes the entire agreement between the parties with respect to its subject matter and shall have effect to the exclusion of any other memorandum, agreement, or understanding of any kind, whether oral or written, between the parties hereto.

23. Governing law and jurisdiction

The Contract shall be governed by and construed in accordance with the laws of Ontario and the parties hereby agree to submit to the exclusive jurisdiction of the Ontario courts.

Signed for and on behalf of the Client:

_________________________________________________
Signature of person Authorized to bind organization

_________________________________________________
Printed Name and Date

Updated 2009.07.17