Electronic Dental Protection, LLC (‘EDP’) agrees to provide [Client Name] (‘Client’ or ‘You’) with Online Backup Service (‘OBS’) for Client’s server(s) as described in this Limited Warranty and Service Level Agreement (‘Agreement’) for the retention period selected by Client. EDP shall provide the Online Backup Service in accordance with the following Terms and Conditions.

 

1. TERM OF AGREEMENT

 

1.1 This Agreement shall remain in force until terminated by either party upon thirty (30) days written notice to the other party, except as otherwise provided in this Agreement.

 

2. LIMITED WARRANTY

 

2.1 EDP warrants that once the initial backup (as defined in section c of the agreement) has been successfully completed on client’s server, the obs provided by EDP will substantially conform to the agreement below, provided that client complies with the conditions and requirements set forth in the agreement. Notwithstanding the foregoing, client understands and agrees that (a) the obs requires access to, and use of, the internet and that the internet is an unregulated, public network over which EDP exerts no control and (b) EDP has no responsibility for operating and maintaining client’s server and its connection to the internet to access and use the obs.

 

2.2 except for the limited warrant described in section 2.1, EDP disclaims any and all other warranties and conditions, express or implied, relating to the obs and otherwise relating to this agreement, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, or arising from a course of dealing, usage or trade practice. EDP specifically disclaims any warranty that the operation of the obs will be uninterrupted or error free. further, EDP makes no representations or warranties whatsoever, and shall have no liability whatsoever, with respect to the accuracy, dependability, privacy, security, authenticity or completeness of data transmitted over the internet, or any intrusion, virus, disruption, loss of communication, loss or corruption of data, or other error or event caused or permitted by or introduced through the internet or client’s server. client is solely responsible for implementing adequate firewall, password and other security measures to protect client’s systems, data and application from unwanted intrusion, whether over the internet or by other means.

 

2.3 The limited warranty in Section 2.1 gives Client specific legal rights. If Client believes that EDP’s Online Backup Service does not conform to the warranty described in Section 2.1, Client should contact EDP. EDP’s exclusive liability and Client’s sole remedy for breach of the limited warranty in Section 2.1 shall be, at EDP’s option, either re-performance at no charge to Client from EDP, of the specific part of the service which failed, or, refund of any fees paid by Client for the period in which the specific service component failed to conform to this limited warranty.

 

3. LIMITATION OF LIABILITY

 

3.1 EDP’s and/or its affiliates’ cumulative liability to client and all other parties for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this agreement or the use of the online backup service or any failure or delay in delivering the online backup service, regardless of the form of any claim or action or theory of liability (including contract, tort, or warranty), shall not exceed the total fees actually received by EDP, either from client or from an affiliate, with respect to the online backup service provided to client during the period of three (3) months immediately preceding the date on which the event giving rise to the claim occurred or the prorata equivalent if client purchased an annual plan.   

 

3.2 EDP and/or its affiliates shall not be liable for any special, incidental, consequential, exemplary, punitive or other indirect damages, or for lost profits or lost data, whether arising out of or in connection with the use or performance of the online backup service or any data supplied therewith or any failure or delay in delivering the online backup service, or otherwise under this agreement, however caused, even if EDP and/or its affiliates, have been advised of the possibility of such damages.

 

4. MISCELLANEOUS

 

4.1 ACTS BEYOND EDP’S CONTROL

 

EDP shall not be deemed to be in breach of this Agreement and shall have no liability hereunder if its obligations are delayed or prevented by any reason of any act of God, war, fire, floods, earthquakes,

natural disaster, accident, riots, acts of government, civil disturbance, terrorist act, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of Client’s agents or Client’s 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 cause beyond its reasonable control.

 

4.2 NOTICE OF CLAIM AND FILING OF SUIT

 

Client must present any claim in writing to EDP within a reasonable time, and in no event longer than sixty (60) days after the event for which the claim is presented. No action may be maintained against EDP for loss, damage or destruction of data transmitted, or for any other claim under this Agreement, unless timely written claim has been made as provided above, and unless such action is commenced within six (6) months after the date on which such written claim, delivered in accordance with the foregoing, has been received by EDP.

 

4.3 OWNERSHIP WARRANTY AND WARRANTY THAT MATERIAL IS NOT ‘PORNOGRAPHIC’

 

Client represents and warrants that Client is the owner or legal custodian of the data transmitted to EDP pursuant to the terms of this Agreement and that Client has full authority, including, without limitation, under all export control and data protection laws and regulations of the United States and each country where the data transmitted to EDP is located, to transmit said data and direct its disposition in accordance with the Online Backup Service and the terms of this Agreement. Client warrants that none of the data or images transmitted via the OBS could reasonably be considered as meeting the criterion normally applied to material deemed to be ‘pornographic’ in nature. Any transmission of such material by Client will be considered fraudulent use of EDP’s services and the Agreement will be immediately terminated and all ‘pornographic’ material will be destroyed.

 

4.4 CONFIDENTIALITY

 

4.4.1 “Confidential Information” means any of Client’s data.

 

4.4.2 Confidential Information shall be held in confidence by EDP and shall be used only for the purposes of providing the Online Backup Service to Client or as otherwise provided for in this Agreement. EDP shall use the same degree of care to safeguard Confidential Information as it utilizes to safeguard its own confidential information.

 

4.4.3 EDP may comply with any subpoena or similar order of a court or other governmental body or political subdivision thereof related to data on the EDP Server or otherwise stored by EDP pursuant to this Agreement, or with any other legal requirement requiring disclosure of such data, provided that EDP notifies Client promptly upon receipt thereof, unless such notice is prohibited by law. Client shall pay EDP’s reasonable expenses and charges for such compliance.

 

 

4.5 INDEMNIFICATION

 

Client agrees to fully indemnify and hold harmless EDP and/or its affiliates and their employees and agents for any liability, cost or expense (including litigation expenses and reasonable attorneys’ fees) arising out of (i) EDP’s possession of Client’s data, or (ii) Client’s breach of the terms and conditions of this Agreement.

 

4.6 MODIFICATION; AUTHORITY; ASSIGNMENT

 

4.6.1 Any aspect of the Agreement may be modified by EDP upon thirty (30) days prior notice. If Client does not wish to be bound by such modification for each of Client’s Servers, Client may terminate the OBS for any one or all of Client’s Servers for which Client does not wish to be bound by such modification by sending a termination notice to help@ElectronicDataProtection.com at any time prior to the effective date of such modification. Otherwise such modification shall be in effect for the remaining term of Online Backup Service to be provided for Client’s Server(s).

 

4.6.2 Client represents and warrants that the person signing this Agreement has the authority to enter in to this Agreement on Client’s behalf and that Client may authorize other individuals to purchase additional services.

 

4.6.3 This Agreement binds any of Client’s authorized users, as well as Client’s heirs, executors, successors, and assigns and can only be changed by a written instrument signed by Client and EDP.

 

4.6.4 As a condition precedent to Client’s installation of the EDP-furnished Software, as defined in Section C of the Agreement, on Client’s Server, Client must accept this Agreement and any then-current Software License Agreement (“Software License Agreement”), which is available upon request. In the event Client does not accept such agreements, then a) Client will not be authorized to install the EDP-furnished Software on Client’s Server; and, b) if that Server is Client’s only Server, this Agreement shall automatically terminate without further action or notice and without liability to EDP, but if Client has other Servers then this Agreement and the then current Software License Agreement shall be binding with respect to those other Servers. Client is advised to carefully review this agreement and any modifications for important information regarding service requirements, usage restrictions and support functions relating to the online backup service. Client shall also comply with, and/or acknowledge, as applicable, any “terms of use” and “privacy policy” posted on the EDP website. EDP shall be under no obligation to provide the online backup service to client unless and until client has accepted this agreement and the software license agreement.  

 

4.6.5 This Agreement may not be assigned by Client (other than to an affiliate which shall assume Client’s obligations by written instrument, a copy of which shall be provided to EDP) without the written consent of EDP, which shall not be unreasonably withheld or delayed.

 

4.6.6 This Agreement may be assigned by EDP.

 

4.7 GOVERNING LAW; JURISDICTION

 

4.7.1 This Agreement is governed by the laws of the State of Nevada.

 

4.7.2 Client hereby agrees to submit to the exclusive jurisdiction of the federal and state courts located in Clark County, State of Nevada; provided, however, that EDP shall have the right to institute judicial proceedings against Client or anyone acting by, through or under Client, in other jurisdictions in order to enforce EDP's rights hereunder through re-formation of contract, specific performance, injunction or similar equitable relief. Each party to this Agreement hereby irrevocably waives any and all rights to a jury trial and any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to this Agreement in Las Vegas, Nevada and further irrevocably waives any claim that Las Vegas, Nevada is not a convenient forum for any such suit, action or proceeding.

 

4.8 DATA AND/OR IMAGE CONTENT

 

EDP will not knowingly backup and/or store any data or images that could reasonably be considered as meeting the criterion normally applied to material deemed to be ‘pornographic’ in nature. If Client uses EDP’s Online Backup Service to store such material, Client’s use of EDP’s services will be considered fraudulent. Upon its discovery by EDP, the Agreement will be immediately terminated and the ‘pornographic’ material will be deleted from EDP’s servers and storage area networks without delay.  

 

4.9 ENTIRE AGREEMENT

 

This Agreement, together with the following Service Level Agreement, constitute the entire understanding between EDP and Client with respect to the subject matter hereof. Terms and conditions as set forth in any purchase order submitted by Client to EDP which differs from, conflicts with, or is not included in this Agreement, shall not become part of this Agreement unless specifically accepted by EDP in writing.

 

 

SERVICE LEVEL AGREEMENT (SLA)

 

The Online Backup Service is warranted to substantially conform to the service levels specified below for any of Client’s Servers after the Initial Backup has taken place on such Server(s).

 

A. DATA PROTECTION

 

Depending upon the options selected by Client, backup configurations can be set to upload a static backup archive set (data that does not change over time) or to run on a scheduled basis. When a backup configuration is running, only changes to files and data Client has selected for backup on the Server are captured by the EDP-furnished software and sent to the EDP Server. Queued changes are sent to the EDP Server when there is a valid connection, as defined in Section E below, between Client’s Server and the EDP Server and there are no preceding items waiting to be sent.

 

B. GUARANTEED RECOVERABILITY & RESTORES

 

B.1 RESTORATION PERFORMANCE

 

The time required for restoration over the Internet is determined by Client’s bandwidth speed and quality; up to speeds of approximately 2 Mbps. At speeds faster than 2 Mbps, other factors may affect network restore times. Network performance, data compressibility, and end user systems may affect restore times. If EDP, as part of its monitoring function, observes any unusual, abnormal or excessive numbers of restore requests, EDP reserves the right to contact Client and require modification of Client’s procedures and actions in this area.

 

B.2 PHYSICAL MEDIA RESTORES

 

Large data restores are supported by EDP shipping Client’s data to Client on external hard drives or other physical media. Each hard drive is rented to Client and must be returned to EDP within two (2) weeks of the date that EDP shipped the hard drive to Client. EDP is not responsible for arranging the return shipment of the device; that is Client’s responsibility. The shipment of external hard drives or other physical media is dependent on 1) the time the restore request is received and 2) the amount of data being restored.

 

C. EDP’S ONLINE BACKUP SERVICE

 

When used in accordance with the following usage requirements and guidelines, the Online Backup Service provides on-line backup protection for Client’s covered Server(s). The Online Backup Service

is able to protect applications, open files, open databases, and registry and security information.

 

To deploy the Online Backup Service, Client downloads a software agent from the EDP website onto each Server for which Client has purchased backup services. Once configured and deployed, the EDP-furnished software replicates the selected data in its entirety (the “Initial Backup”) to one of EDP’s backup appliances and/or offsite data storage backup servers. After the initial Backup, only changes to files and databases selected for backup on Client’s Server are sent to EDP’s Servers.

 

Client manages the Online Backup Service through software personalized with Client’s custom content. A notification server automatically sends email correspondence showing the current status of all backup and restore jobs (the software agent also dispalys this information) and enables Client to make immediate modifications or requests. Client may view an inventory of all data files, current and historic; initiate restores from the web; and view all backup and restore processes.

 

Client’s backup and restore processes are also monitored and managed by EDP. If any problems arise, an EDP technician will notify Client and suggest corrective action. From time-to-time this Service Level Agreement may change. A modification may include, but is not limited to, changes in system requirements, restrictions, limitations, or bandwidth requirements. Client will be notified at least 30 days prior to such a Service Level Agreement change via E-mail. Client is responsible for ensuring that Client’s system conforms to any updated restrictions, limitations or requirements.

 

In the event that Client’s use of the Online Backup Service is adversely affecting the operation of the OBS, Client’s Online Backup Service may be terminated by EDP without liability to EDP and/or its affiliates, upon prior written notice from EDP, unless in EDP’s sole technical discretion, a technical emergency shall require immediate termination (which shall be without liability to EDP and/or its affiliates) in order to prevent Client’s use of the OBS from adversely affecting the effectiveness of the Online Backup Service for other end users, or to preserve system integrity or prevent network abuse, in which case notice shall be provided to Client via telephone call and E-mail promptly following such emergency termination. Client is responsible for updating EDP and/or its affiliates, if any, as to any changes to Client’s E-mail and contact information to facilitate communication of these notices.

 

D. SYSTEM REQUIREMENTS

 

Each of Client’s Servers must meet the following system requirements in order to effectively utilize EDP’s Online Backup Service:

 

• A continuously available Internet connection with an upload speed of at least 384kbps (see Bandwidth Requirements below for specifics)

• Windows 95/98/Me/NT/2000/XP/2003

• Pentium III or faster CPU technology

• 128 MB of free memory under normal load

• the greater of 150 MB or 5% free disk space

 

E. BANDWIDTH REQUIREMENTS

 

EDP’s Online Backup Service is able to measure the rate at which data on Client’s Server is changing. After a few hours of routine operation, during normal business hours, EDP’s technicians will be able to provide an estimate of the completion time for the Initial Backup and an estimate of bandwidth required for Client’s continuous operation of the Online Backup Service. Bandwidth requirements are based on a combination of rated bandwidth, latency and bandwidth error rates. Client will be notified if the technician determines that there is insufficient bandwidth for Client’s continuous operation.

 

Changes are sent to the EDP Server when there is a valid connection between Client’s Server, the backup appliance, and the EDP Server. “Valid Connection” means that the bandwidth actually available between Client’s Server(s) and the EDP Server is adequate for the amount of data being protected and the rate of the data changes as discussed below. The bandwidth actually available can be affected by other network traffic into or out of Client’s premises and may be affected by occasional or intermittent slowdowns or interruptions in the network path(s) to the EDP Server. The Online Backup Service will continue operation during brief periods when limited bandwidth is available and will automatically resume operation following network interruptions; however, EDP estimates that a typical file system will see a daily change rate of 5%. At this change rate, the expected bandwidth requirement is 20kbps per protected gigabyte (“GB”). Highly dynamic servers such as mail servers and active database servers may have additional bandwidth requirements. Higher rates of change will result in a linear increase in bandwidth required. Increased amounts of protected data, increased rates of data change, other demands for bandwidth, or other factors that contribute to latency may, at a given time, limit the effectiveness of Client’s use of EDP’s Online Backup Service.

 

F. RESTRICTIONS AND LIMITATIONS

 

Open file managers: Client’s Server must not be running an open file protection product. This includes the open file options on other traditional backup products. There are some other restrictions associated with other software products such as anti-virus software.

 

G. INITIAL PROTECTION TIME REQUIREMENTS

 

The Initial Backup process for Client’s Server must be completed before it is fully protected by EDP’s Online Backup Service. Depending on the data volume, this process may take several days. Data transfer rates for the Initial Backup can be estimated at 2GB per day for each 256kbps of available bandwidth. The data transfer rate may improve by as much as 50% when a few large files, as opposed to an equivalent amount of data made up of many smaller files, are being protected. Typically, if only the minimum bandwidth is available for the given capacity, it could take nine days or more to complete the Initial Backup. It is recommended that You have enough bandwidth to complete the Initial Backup for any single large file in five days or fewer. Extended network interruptions can force a retransmission of the current file, thereby delaying Client’s Initial Backup.

 

H. TECHNICAL SUPPORT

 

EDP provides Client with access to technical support as described below:

 

• Technical support for EDP’s Online Backup Service is available during normal business hours, which are (8:00 AM to 5:00 PM) Pacific Time, Monday through Friday, excluding holidays.

 

• Emergency 24 hour, 7 days per week (24x7) technical support is available for critical data restorations.

Email: info@ElectronicDataProtection.com