In addition to the General Terms and the other terms and conditions in the Agreement (as defined in the Hosting Agreement Summary), these Service Terms (the “Backup Service Terms”) govern the Managed Backup Services provided by Logicworks. Capitalized terms used but not defined in these Backup Service Terms will have the meanings given them elsewhere in the Agreement.
1. BACKUP SOLUTIONS. “Managed Backup Services” are Hosting Services that include the use of a Configuration located on one or more shared EMC Avamar or Data Domain environments that are hosted by Logicworks. Subject to availability, Client may purchase the following Backup Service options:
(a) AGENT BACKUPS. If an agent backup option is selected on a Service Order, Logicworks shall backup Protected Data that is sent by the Agent to a Backup Site (“Agent Backups”). Client is solely responsible for properly installing, updating and configuring the Agent (as defined below), for the availability of a Local Environment and for ensuring that the Agent is able to communicate with the Backup Site. Client shall determine with the assistance of Logicworks, as such assistance may be requested by Client in writing, if a dedicated circuit is required to conduct agent backups or to restore a Local Environment from a Backup Site. Unless Client procures a dedicated circuit from a third party at its own expense, backups and restorations will take place over the public Internet. Client must use Logicworks’ provided settings for the Agent to connect to the Backup Site using an encrypted session and Client must encrypt all Protected Data that contains PII in accordance with Section 3(c) (Encryption) below.
(b) AVAMAR REPLICATION. If an Avamar replication option is selected on a Service Order, Logicworks shall replicate Local Backups from an Avamar grid in a Local Environment to a Replication Site (“Avamar Replications”). Client is solely responsible for the availability of a Local Environment, including the local Avamar grid, and for ensuring that the local Avamar grid is properly configured to communicate with a Replication Site in a Datacenter. Client shall determine with the assistance of Logicworks, as such assistance may be requested by Client in writing, if a dedicated circuit is required to replicate Local Backups to a Replication Site or to restore a Local Environment from a Replication Site. Unless Client procures a dedicated circuit from a third party at its own expense, replication and restorations will take place over the public Internet. Client shall encrypt all Local Backups when they are in transit between a Local Envirionment and a Replication Site and Client must encrypt all Local Backups that contain PII in accordance with Section 3(c) (Encryption) below.
(c) DATA DOMAIN REPLICATION. If a data domain replication option is selected on a Service Order, Logicworks shall replicate Local Backups from a Data Domain in a Local Environment to a Replication Site (“Data Domain Replication”). Client is solely responsible for the availability of a Local Environment, including the local Data Domain, and for ensuring that the local Data Domain is properly configured to communicate with the Replication Site. Client shall determine with the assistance of Logicworks, as such assistance may be requested by Client in writing, if a dedicated circuit is required to replicate Local Backups from a Local Data Domain to a primary Replication Site or to restore a Local Environment from a primary Replication Site. Unless Client procures a dedicated circuit from a third party at its own expense, replication will take place over the public Internet. Client shall encrypt all Local Backups when they are in transit between a Local Envirionment and a Replication Site and Client must encrypt any Local Backups that contain PII in accordance with Section 3(c) (Encryption) below.
(d) MULTI-SITE REPLICATION. If a multi-site replication option is (d) selected on a Service Order, Logicworks shall replicate Stored Data from a Replication Site or a Backup Site, as the case may be, to a Replication Site in a different Datacenter (“Multi-Site Replications”). Logicworks shall be responsible for properly configuring replication from a Replication Site or a Backup Site to a Replication Site in a different Datacenter. However, Client shall remain responsible for encryption in accordance with Section 3(c) (Encryption) below. Client shall also determine with the assistance of Logicworks, as such assistance may be requested by Client in writing, if a dedicated circuit is required to restore a Local Environment from any Replication Site.
2. BACKUP AGENT. In order to enable direct backups of a Local Environment to a primary Backup Site, Client must install, properly configure, update and use a software agent provided by EMC (the “Agent”). Client shall use the Agent only as permitted by the End User License Agreement included in the Agent. Logicworks will provide Client with the Agent and documentation from EMC regarding its installation and configuration (the “Documentation”). Logicworks is not responsible for Client’s failure to properly install, configure, use or update an Agent or for any defects in the Agent or in the Documentation. LOGICWORKS DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE AGENT AND DOCUMENTATION, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE AGENT AND DOCUMENTATION ARE PROVIDED “AS-IS”.
3. CLIENT OBLIGATIONS.
(a) FAIR USE. Client must not knowingly use a disproportionate share of the resources associated with the Managed Backup Services and must cease from doing so immediately if Logicworks determines, in its sole discretion, that such use constitutes an abuse of its network. In addition, Client shall report any errors in the Managed Backup Services, including failed backups that are not reported by Logicworks, promptly to Logicworks.
(b) CONTENT RESTRICTIONS. Client shall not place any Content on the Services that: (1) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (2) violates any law, statute, ordinance or regulation; (3) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (4) is obscene, child pornographic or indecent; or (5) contains any Malware.
(c) ENCRYPTION AND SECURITY. Client shall encrypt all PII before it is transmitted from Local Environment and ensure that it remains encrypted while it is “in flight” (e.g., is in the process of being transmitted manually or by automatic protocol to or from a Backup Site or Replication Site). Client must exclusively use encrpyted Backup Sites and Replication Sites to process, store, transmit or receive PII. Stored Data will not be encrypted while it is “at rest” (e.g., stored) at any other Backup Site or Replication Site. Logicworks will not decrypt any Stored Data and Client shall ensure that Logicworks does not gain access to unencrypted PII. Stored Data used for restores must be decrypted by Client inside a Local Environment. For Agent Backups, Client shall use the Agent to encrypt all data at rest that contains PII before it leaves a Local Environment. For Avamar Replications and Data Domain Replications, Client shall ensure that all Local Backups that include PII are encrypted as required by any applicable Privacy Laws and industry standard controls (e.g., the Payment Card Industry Data Security Standard). Client is solely responsible for maintaining the secrecy of all encryption keys and passwords that are used in a Local Environment. Client will not be (c) able to restore Protected Data if the encryption key is lost. CLIENT IS SOLELY RESPONSIBLE FOR ENCRYPTING ALL CONTENT AS REQUIRED BY APPLICABLE LAW AND THIS AGREEMENT.
4. DISCLAIMER. IN ADDITION TO THE OTHER DISCLAIMERS IN THE AGREEMENT, LOGICWORKS HEREBY DISCLAIMS ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND CLIENT HEREBY WAIVES ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE OR SHIPMENT OF CLIENT STORAGE MEDIA OR CONTENT BY LOGICWORKS OR ITS SERVICE SUPPLIERS AND SUBCONTRACTORS, OR ANY OF ITS OR THEIR CONTRACTORS OR AGENTS.
5. CLIENT RESPONSIBILITIES. Client is solely responsible for the suitability of the Managed Backup Services to meet its disaster recovery and other business continuity needs. Client acknowledges that the time required to complete a restore will vary based on data volume, bandwidth, backup plans, use of a recovery device and other factors, such as geography. Client shall arrange for and maintain dedicated circuits and other data connections that are suitable for its use of the Managed Backup Services and Client is responsible for any communication costs associated with the Backup Service.
(a) MONTHLY BACKUP FEES. The Recurring Fee or each month of Managed Backup Services shall be equal to the greater of the Minimum Recurring Fee and the Actual Usage Fee. “Minimum Recurring Fee” means the per-gigabyte price listed in a Service Order multiplied by the Minimum Usage Commitment. “Actual Usage Fee” means the per-gigabyte price listed in a Service Order multiplied by the volume of billable Protected Data and Stored Data existing at the commencement of the applicable monthly billing period. Except as provided below in Section 6(b), Protected Data is used to calculate Actual Usage Fees for Agent Backups and Avamar Replications and Stored Data is used to calculate Actual Usage Fees for Data Domain Replications. Unless otherwise stated in a Service Order, Client shall pay the setup fee and the Recurring Fee for the first month of Managed Backup Services before Logicworks will be obligated to make them available. The Recurring Fee for the first month of Managed Backup Services shall be equal to the Minimum Recurring Fee, prorated based on the total number of days in the respective calendar month and the number of days during which Managed Backup Services are provided. Setup fees, Professional Service fees and all other fees are in addition to the Minimum Recurring Fee and Actual Usage Fee. Billing and all usage calculations will be based solely on Logicworks’ records.
(b) EXCESSIVE USAGE. Notwithstanding Section 6(a), Stored Data will be used to calculate Actual Usage Fees for Agent Backups and Avamar Replications if the amount of Stored Data in a Backup Site exceeds the amount of Protected Data from which it is derived (“Excess Stored Data”). Client shall inform Logicworks during setup and provisioning of any factors that may cause there to be Excess Stored Data, such as a high change rate or the inability to save incremental changes. Logicworks may invoice Client, and Client shall be liable for, all Actual Usage Fees resulting from Excess Stored Data even if they are not invoiced at the beginning of the following month.
(c) MAINTENANCE. “Maintenance” means modifications, upgrades, patching or repairs made to the hosted Avamar or Data Domain infrastructures or the (c) Backup Sites, or the relocation of hosted Avamar or Data Domain infrastructures within or between Backup Sites. Logicworks may perform Maintenance on at least twenty-four hours’ notice between the hours of 12:00 a.m. and 6:00 a.m. at the location where the Maintenance is being performed (a “Maintenance Window”), or at any time scheduled by the parties. Notwithstanding the foregoing, Logicworks may perform “Emergency Maintenance”, which is Maintenance that is required to maintain the security or performance of the Avamar environments, Backup Sites, Logicworks’ network, or the services provided to any of its other clients at any time, as needed, and without prior notice. All or part of the Services may be unavailable while Maintenance or Emergency Maintenance is performed.
7. EARLY TERMINATION FEE. The Early Termination Fee for Managed Backup Services will equal the then-current Minimum Usage Fee multiplied by the number of months that would otherwise have remained in the Term after the termination.
8. SERVICE LEVEL AGREEMENT. This Section 9 sets forth the Service Level Agreement (the “Service Level Agreement” or “SLA”), which includes Client’s sole remedy for Logicworks’ failure to provide the Managed Backup Services. Client is solely responsible for providing accurate and current contact information for the purposes of this SLA. Client will not be eligible for Service Credits resulting from Client’s failure to provide current and accurate contact information.
(a) RECOVERY POINT OBJECTIVE. Subject to the exceptions set forth in this SLA, Logicworks guarantees the Recovery Point Objective. “Recovery Point Objective” means the amount of data loss that is deemed to be acceptable as indicated by the backup increments listed on a Service Order, or if no increments are listed in a Service Order, twenty-four hours. Subject to the applicable limitations and conditions in this SLA, Client will be entitled to a Service Credit for each individual breach by Logicworks of the Recovery Point Objective that is equal to one-thirtieth of the Recurring Fee for the month in which the failure occurs.
(b) DATA RETENTION TIME. Logicworks follows a prescribed schedule for backups. By default, Stored Data will be retained for thirty days. Subject to the exceptions in this SLA, Logicworks guarantees that Stored Data will be available for a period of thirty days after the date on which it was first created (the “Retention Period Guarantee”). Subject to the applicable limitations and conditions in this SLA, Client will be entitled to a Service Credit for each individual breach by Logicworks of the Retention Period Guarantee that is equal to one-thirtieth of the Recurring Fee for the month in which the failure occurs.
(c) RECOVERY TIME OBJECTIVE. Subject to the exceptions set forth in this SLA, Logicworks guarantees that the Recovery Time Objective will not exceed eight hours (the “Recovery Guarantee”). “Recovery Time Objective” means the elapsed time between the Network Operations Center’s (“NOC”) receipt of a service request submitted by Client through Logicworks’ online ticketing and support portal (“LogicOps”) and the time at which the Stored Data is staged by Logicworks and ready for an Agent to connect and intiate a restore or for replication to commence to a target Avamar grid or Data Domain. The Recovery Time Objective does not include any delays that are caused by Client’s breach of this Agreement, including Client’s failure to provide complete and accurate contact information. Client requests made by phone, email or any other method are not included in the Recovery Guarantee. Subject to the applicable limitations and conditions in this SLA, Client will be entitled to a Service Credit for each individual breach by Logicworks of the Recovery Guarantee that is equal (c) to one-thirtieth of the Recurring Fee for the month in which the failure occurs.
(d) NOTICE OF FAILED BACKUPS. Subject to the exceptions set forth in this SLA, Logicworks guarantees that the Failure Notification Period will not exceed twenty-four hours (the “Failure Notification Guarantee”). “Failure Notification Period” means the elapsed time between NOC’s receipt of a backup failure notification for a single run of backups and the time at which Logicworks notifies Client by service ticket, email or telephone call of the failed backup(s) that are listed on the notification. The Failure Notification Period does not include any delays that are caused by Client’s breach of this Agreement, including Client’s failure to provide complete and accurate contact information. If Logicworks fails to meet the Failure Notification Guarantee, then subject to the terms and conditions of this SLA, for each run of backups that is not fully reported within the Failure Notification Period Client will be entitled to a Service Credit that is equal to one-thirtieth of the Recurring Fee for the month in which the failure occurs.
(e) TROUBLESHOOTING BACKUP FAILURES. Subject to the exceptions set forth in this SLA, Logicworks guarantees that if the same backup job fails during two consecutive runs, then Logicworks shall begin investigating the Backup Services within eight hours of its receipt through LogicOpsof a reuest from Client to troubleshoot the failure (“Troubleshooting Guarantee”). The Troubleshooting Guarantee does not apply unless the Agent can connect to the Backup Site or if NOC reasonably determinates that the cause of the failure originates from outside of the Backup Services. If Logicworks fails to meet the Troubleshooting Guarantee, then subject to the terms and conditions of this SLA, for each failure Client will be entitled to a Service Credit that is equal to one-thirtieth of the Recurring Fee for the month in which the failure occurs. Notwithstanding the Troubleshooting Guarantee, Logicworks does not guarantee that it will be able to diagnose the cause of all backup failures or to correct errors in the Managed Backup Services. If Logicworks determines, in its reasonable discretion, that the cause of a backup failure is caused by Client, a Local Environment or any of the exceptions set forth below in Section 8(h) (Service Credit Exclusions), Logicworks may invoice Client for the troubleshooting time in accordance with its standard hourly rates.
(f) SERVICE CREDIT EXCEPTIONS. Logicworks is not responsible for, and Client is not entitled to Service Credits for, any failure of, or deficiency in, the Services resulting from any monitoring or alerting failure or delay to the extent the failure or delay is caused by: (1) Client’s failure to provide Logicworks with accurate and current contact information, (2) Client-defined response procedures, (3) third parties over whom Logicworks has no control; or (4) a force majeure event that disables a Backup Site or Replication Site if Client has not purchased Multi-Site Replication for the Stored Data located in the affected Backup Site or Replication Site. In addition, Logicworks is not responsible for, and Client is not entitled to Service Credits for, any unavailability or adverse effect on the Services resulting from the failure or delay of any monitor or alert that has not been jointly configured and successfully tested for reliability by both parties. Logicworks is not obligated to conduct any monitoring that requires custom programming or scripting.
(g) SERVICE CREDIT LIMITATIONS. (i) ELECTION OF CREDITS. In no event will the same incident result in more than one type of Service Credit. Client may elect which resulting Service Credit will apply when the same incident gives rise to more than one type of Service (i) Credit. (ii) CUMULATIVE AMOUNT. The maximum combined amount of all Service Credits earned in a given calendar month for any reason may not exceed the greater of the Actual Usage Fee and the Minimum Recurring Fee for the calendar month in which the Service Credits are awarded. Client is not entitled to excess Service Credits that would be available if not for this limitation.
(h) SERVICE CREDIT EXCLUSIONS. Client is not entitled to Service Credits and Logicworks shall not be liable for any breach of the SLA that is caused by: (1) Maintenance, Emergency Maintenance, or a suspension of Services; (2) software errors, including flaws, glitches, bugs and vulnerabilities in applications, operating systems, firmware and embedded software; (3) the incompatibility of any operating system, application, file system, other software or vendor-supplied security patches with Client’s Content; (4) acts or omissions of Client or agents of Client; (5) the failure of Servers or services outside of a Datacenter on which the Services are dependent, including inaccessibility on the Internet that is not caused by Logicworks’ network; (6) Logicworks’ blocking of Content that Logicworks deems to be in violation of the AUP; (7) a force majeure or another event not in Logicworks’ direct control that occurs outside of a Datacenter; (8) Client’s failure to meet the terms and conditions of this Agreement; (9) another client’s breach of the fair use principles described above in Section 3(a); (10) Client’s faiure to approve or request troubleshooting of a backup failure as provided in Section 8(e); (11) time required to download, reconfigure and restart Protected Data that is recovered from Stored Data; (12) the disabling or changing (either intentionally or unintentionally) by Client of Agent or host settings preventing proper communication between an Agent and an Avamar grid; (13) the modification or deletion by Client of Logicworks’ administrative directories or any software installed by Logicworks for security, monitoring or Maintenance purposes; (14) the incompatibility of Stored Data with the Local Environment on which it is restored, including due to Client’s use of software that is no longer under vendor support (e.g., end of life); (15) Client becomes ineligible for Service Credits pursuant to any other provision of this Agreement; (16) any delays requested or caused by Client; (17) Client’s decision not to instruct Logicworks to reinitiate a failed backup; (18) the unavailability of Client’s Local Environment for any reason, including maintenance, non-functioning Servers and networking equipment, Client’s failure to maintain adequate Internet access, or any other activity on the Local Environment; (19) backups that are cancelled by Client; (20) conditions that prevent the Local Environment from functioning properly, including power failures and inadequate environmental conditions within a Datacenter; (21) network or system problems outside of the edge device at the Backup Site or Replication Site that connects the Avamar grid or Data Domain located therein to the Internet or to Client’s dedicated circuit, including a loss of connectivity; (22) any change in the Local Environment that prevents the Managed Backup Services from functioning properly; (23) any other unavailability arising from an incident not caused by Logicworks; (24) use of the Agent in a manner other than as permitted in the applicable end user license agreement and Documentation; or (25) modifications to the Agent made by Client or a third party, which are expressly prohibited.
(i) SERVICE CREDIT PROCEDURES. Logicworks will determine, in its reasonable discretion, Client’s eligibility for Service Credits and the amount of Service Credits awarded pursuant to this Agreement. To be eligible for Service Credits, Client must send a reasonably detailed, written request for Service Credits to Logicworks within five Business Days after the first day on which the events giving rise to the request first occurred. Logicworks will use reasonable efforts to respond to all Service (i) Credit requests within thirty days of receipt. The calculation of all Service Credits will be based on Logicworks’ records and data. Logicworks will apply Service Credits to the invoice for the month immediately following the month in which a determination of Service Credit amount and eligibility is made. If Logicworks’ ability to comply with this SLA is adversely affected by Client’s use of the Backup Services, then Logicworks may elect to perform any required Additional Services without prior notice at Client’s expense.
9. SEEDING AND CONTENT RETURN. Unless Client agrees to shipping terms that are set forth in a separate document, the shipment of Content and data to and from Logicworks on any storage media will be at Client’s sole risk. Client represents and warrants that: (A) no PII will be shipped on storage media to Logicworks for seeding or any other purpose; and (B) that it will ensure that no PII is included on any storage media that is returned to Client by Logicworks. In no event will Logicworks be liable for any delays, damages or losses that occur during shipment, including those related to lost Content, Industry Controls or Privacy Laws.
10. INDEMNIFICATION. In addition to Client’s indemnification obligations in Section 22(a) of the General Terms, and subject to the terms in Section 22(b), Client shall indemnify, defend and hold harmless the Logicworks Indemnitees (as defined in Section 22(a) of the General Terms), from and against any claims, damages, liabilities, losses, costs, settlements, penalties, fines and expenses (including reasonable attorney’s fees and expert fees) arising out of or relating to any suit, action, proceeding, arbitration, subpoena, claim, investigation or demand brought or asserted by a third party against any Logicworks Indemnitee(s) arising from or concerning: (A) Client’s breach of Section 2 (Backup Agent), 3(b) (Content Restrictions), 3(c) (Encryption and Security), and 10 (Seeding and Content Return); or (B) any sales, goods and services, use, excise, import, export, property, value added or other taxes or duties assessed or imposed on Logicworks or its subcontractors in connection with or as a result of Content.
(a) “Backup Site” means an Avamar grid in a Logicworks Datacenter that is a target for Agent Backups.
(b) “Local Environment” means a computing environment located outside of a Logicworks Datacenter that is used with the Managed Backup Services, including an application environment on which an Agent is installed, local Avamar Grids and local Data Domains that are replicated to a Backup Site.
(c) “Local Backup” means a backup to an Avamar Grid or Data Domain located within a Local Environment or anywhere outside of a Logicworks Datacenter.
(d) “Minimum Usage Commitment” means the storage commitment identified in a Service Order or, if no storage commitment is identified in a Service Order, two terabytes.
(e) “Protected Data” means the aggregate data on client servers that is backed up to a Backup Site.
(f) “Replication Site” an Avamar Grid or Data Domain located in a Logicworks Datacenter that is an Avamar grid or Data Domain replication target.
(g) “Service Credits” means one or any combination of the Service Credits described in the SLA or elsewhere in the Agreement.
(h) “Stored Data” means the de-duplicated Protected Data that is stored on the Managed Backup Services.