By this Data Backup Services Agreement (“Agreement”), Sydney Backups Pty Ltd (“Sydney Backups”) and the client identified as (“Client”) agree as follows:
1. Term. This Agreement is effective upon the date signed and shall remain in force for a period of 24 months. The Agreement automatically renews for a subsequent two years term beginning on the day immediately following the end of the Initial Term unless either party gives the other thirty days’ prior written notice of its intent not to renew this Agreement.
2. Standard Fee. Client shall pay, after the end of the Initial Term, Sydney Backups a 2-yearly fee per backed up server (or in prorated manner based on agreed payment cycle) and is payable in AUD dollars within thirty (30) days of invoice. Adjustments for additional server(s) and/or workstation(s) will be applied in a prorated manner on the next billing cycle during the Agreement.
3. Services Provided. An on-site backup device unit (Network Attached Storage, Sydney Backups DR Appliance or a USB disk drive, all provided for additional cost) that acts as a local backup storage device and/or stand-by disaster recovery server (applies only to Sydney DR Appliance) in the event of server and/or workstation failure. (a) Incremental backups done on the backup device unit as frequently as every 60 minutes. (b) Secure Remote (Off-site) Storage provided at a commercial data centre Equinix SY3 in Alexandria NSW. (c) Data disk from the secure data centre with the most recent information stored off-site – in the event of a disaster, where the on-site backup device is lost. (d) Full management, monitoring, reporting and testing of the remote storage. (e) Necessary backup software licensing for the duration of Agreement. (f) Successful testing of data recovery once per quarter upon Client’s request.
4. Security. All data is fully encrypted during transmit off-site and while stored off-site. All data is stored off- site, in encrypted form, on multiple servers in a highly secure data centre facility. (a) Each backup file is encrypted using 256-bit AES and SSL key-based encryption technology. 256-bit AES encrypted data cannot be read without the corresponding keys, so encrypted data cannot be misused. (b) The on-site backup device unit communicates with off-site remote servers using SSL (Secure Socket Layers) technology. (c) Data stored off-site remains encrypted at all times.
5. Backup Frequency. Servers and/or workstations will be backed up incrementally every 60 minutes during business hours unless specified otherwise. Off-site backup frequency is continuous by default, and may be customized to meet Internet bandwidth limitations. Off-site backup frequency is ultimately depended on total data size, data changes, and available Internet bandwidth. Client must have a minimum upload bandwidth of 70 kb/s to ensure timely off-site synchronization. Sydney Backups is abstained from all responsibility of maintaining off-site backup if this requirement is not met.
6. Backup Data Retention. On-site backup retention policy will depend on the backup device’s available disk space and may be modified at any time to allow continuous operations. Off-site backup retention policy for intra-daily (hourly) is 7 days, daily 30 days, weekly 90 days and monthly 12 months. The off-site retention policy can be increased on a case-by-case basis that will include an increase in cost for the Client.
7. Remote Storage and Base Remote Backup Image Creation. (a) Your data is stored (in encrypted form) in a secure off-site data centre, Equinix SY3, located in 43 Bourke Road, Alexandria NSW. (b) The initial backup will be sent encrypted, via a USB disk drive to the primary remote storage facility. There is an approximately 1-2 weeks turnaround time to seed the initial backup off-site. Incremental backups will occur during the off-site seeding process and will collapse into the main backup once the off-site transfer is complete.
8. Recovery Time Objective (RTO). (a) Upon request, Sydney Backups will attend to all on-site device restores within 24 hours from the initial request. All recoveries from the on-site device (lost files, emails etc.) are chargeable at $100 ex. GST per hour. (b) In a disaster situation, where you should lose your business location, server(s) data and on-site backup device, we will ship a USB disk device with a copy of your backed-up data from our data centre within 24-72 hours, depending on the data chain size, customer location or any other unforeseen circumstances.
9. Off-Site Virtualization. In a disaster where you should lose primary on-site server(s), servers and/or workstations may be virtualized off-site. (a) Servers can be virtualized in the off-site data centre. There is an additional cost for this service and must be requested upfront as it requires 30 days to provision its capability. (b) Public IP and/or VPN access will be given to connect to remote virtual machines. Virtual machines can also be accessed using Remote Desktop Protocol.
10. Ownership of the Data. The backup data stored on the on-site backup device and at the off-site data centre remains the sole property of the Client. If the Client chooses to terminate services, Sydney Backups will assist Client in the orderly termination of services. This could involve copying the backup image to an external drive which will be given to the Client. The Client agrees to pay Sydney Backups the actual costs of rendering such assistance.
11. Loaned Equipment. Client agrees that any loaned equipment provided (USB disk drive, NAS, Backup Appliance, Workstation, Temporary server(s) etc.) by Sydney Backups, in the execution of this service shall remain the property of Sydney Backups, and must be returned if requested. Client further agrees to cease the use of any technology that remains the property of Sydney Backups upon termination of this agreement. If the loaned equipment unit is stolen, damaged or destroyed, the client must pay current market price at the time of the loss for a replacement unit.
12. Interference. Client shall not, directly or indirectly, during the term of this Agreement and for twelve (12) months following its termination, induce or influence any employee of Sydney Backups or any other person or entity to terminate their relationship with Sydney Backups.
13. Warranty. Sydney Backups warrants that the work will be performed to the best of its ability and in accordance with reasonable and customary practices prevailing at the time for its business. (a) As long as the monthly fees are current, the free provided USB backup device unit is fully warranted and no additional charges will be incurred for it’s hardware failure. (b) The NAS or Sydney Backups DR Appliance units cannot be modified in any way or the warranty and the management agreements are voided. This includes adding software applications to the NAS itself, adding memory and/or hard drives, etc. (c) NAS and Sydney Backups DR Appliance (both purchased separately) will be repaired/replaced using advanced replacement parts at Client cost (d) ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF QUALITY, DURABILITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, CONTINUOUS USE, DESIGN, COMPLIANCE WITH APPLICABLE LAW, PERFORMANCE OR ERROR-FREE OPERATION ARE DISCLAIMED IN THEIR ENTIRETY.
14. Confidentiality. Each party shall treat the information received from the other party that is designated as confidential (“Confidential Information”) as a trade secret and strictly confidential. Sydney Backups designates the Deliverables, all information relating to the Deliverables and the financial terms of this Agreement as confidential. Both parties shall: (i) restrict disclosure of Confidential Information to employees and agents solely on a “need to know” basis; (ii) advise employees and agents of their confidentiality obligations; (iii) use commercially reasonable means to comply with the confidentiality obligations of this Agreement; and (iv) notify the other of any unauthorized possession or use of that party’s Confidential Information as soon as practicable after receiving notice of same. Notwithstanding the foregoing, neither party shall be obligated to preserve the confidentiality of any information which: (i) was previously known; (ii) is a matter of public knowledge; (iii) was or is independently developed; (iv) is released for disclosure with written consent; or (v) is received from a third party to whom the information was disclosed without restriction.
15. Equipment and Facilities. Client agrees that Sydney Backups may utilize certain items of The Client’s equipment and may gain access to certain parts of The Client’s facilities. The Client retains title and ownership in all of The Client’s equipment owned by The Client and utilized by Sydney Backups, and must grant authority for Sydney Backups to access The Client’s facility. Facility access may be denied for any reason at any time, however if access to facilities is denied, The Client understands that Sydney Backups may be unable to perform their duties adequately and if such a situation should exist, Sydney Backups will be held harmless.
16. Passwords. Sydney Backups acknowledges that it must have access to any and all systems and resources to perform their duties under this agreement. As such, it must have access to any and all passwords. Bear in mind that the backup data will always be encrypted and not accessible to anyone who does not have the password. If the encryption password is lost, the backup data will be inaccessible. Sydney Backups will provide encryption password to Client within 30 days of this Agreement becoming effective.
17. Termination and Additional Remedies. This Agreement may be terminated by The Client upon sixty (60) days’ written notice if Sydney Backups: (a) Fails to fulfil in any material respect its obligations under this Agreement and does not cure such failure within thirty (30) days of receipt of such written notice. (b) Breaches any material term or condition of this Agreement and fails to remedy such breach within thirty (30) days of receipt of such written notice. (c) Terminates or suspends its business operations. Sydney Backups Pty Ltd reserves the right to terminate this agreement with The Client for any reason by giving (60) days’ written notice and provide a refund on a pro rata basis for the remainder of the Term. If either party terminates this Agreement, Sydney Backups will assist Client in the orderly termination of services, including timely transfer of the services to another designated provider. Client agrees to pay Sydney Backups the actual costs of rendering such assistance.
18. No Third-Party Beneficiary. Client shall not subcontract, assign, subrogate or transfer any interest, obligation or right under this Agreement without prior written consent from Sydney Backups, and any such attempt shall be null and void. Any dissolution, merger, consolidation, reorganization or transfer of a majority of the assets or stock of Client shall constitute an attempted assignment of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns.
19. Jurisdiction. These Terms are governed by the law in force in the State of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in State of New South Wales, and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms, and waives any right it might have to claim those courts are an inconvenient forum.
20. Force Majeure & Malicious Acts. Sydney Backups shall not be liable for any loss, damage or failure due to causes beyond its control, including strikes, riots, earthquakes, epidemics, wars, fires, floods, weather, power failure, telecommunications and/or internet interruptions, the failure or closure of a financial institution, computer malfunctions, acts of God or any other failure, interruption or error not directly caused, or reasonably anticipated, by Sydney Backups.
21. Limited Liability. For the purposes of calculating availability, Sydney Backups shall not be responsible for failures to provide service for any if the following exclusions exist: (a) Problems caused by resources on the client’s network that interfere with the service. (b) Changes made to the client network not communicated to Sydney Backups.
(c) Loss of internet connectivity to the client site for any reason. (d) Service failures that result from any actions or in actions of the Client contrary to IT Service’s recommendations.