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In this agreement, unless the context otherwise requires, the following expressions have the following meanings:
"We", "Our" or "Us" means On Direct Business Services Ltd, trading as "Backup Direct" together with Iron Mountain;
"IRM" means Iron Mountain Corporation;
"You" means the person named in the Service Agreement signed by you;
"Your Supplier" means the company or person that sold you the services;
"This Agreement" means the Service Agreement signed by you, these Terms and Conditions signed by you, the Services Description and the Service Level Agreement as each may be amended from time to time;
"Service Agreement" means the document signed by you setting out the services requested by you, the Service Fees, the Initial Term, the Commencement Date and other terms referred to in these Terms and Conditions;
"Commencement Date" means the date the Services commence;
"Services" means the services selected by you and set out in Service Agreement signed by you;
"Service Fees" means the set up fees and the fees for the provision of the Services described in the Service Agreement signed by you;
"Minimum Committed Fee" means the minimum contracted Gigabytes as selected by you and set out in the Service Agreement signed by you;
"Initial Term" means the minimum contractual period as agreed on the Service Agreement signed by you. "
"Site" means your premises from which data for back-up is sent;
We shall:
2.1 assist you in the set up of the Services, including providing relevant training;
2.2 provide the Services to the levels set out in the Service Level Agreement;
2.3 provide technical assistance when reasonably requested to do so.
2.4 we may vary the detailed implementation of the Services at any time provided that the level of Services is not materially adversely affected.
You shall:
3.1 enter in to, and abide by the terms of, the Licence Agreement with IRM for use of their software agent and their monitoring system;
3.2 observe all our instructions for the use of the Services which we may send to you from time to time;
3.5 notify us immediately you become aware of any problem with the Services;
3.6 if you ask us for assistance, make available to us:
(a) employees with appropriate skills, knowledge and authority; and
(b) provide us with such facilities at your Site as we may reasonably request; to assist in performing our obligations hereunder; and
3.7 comply with all legislation and regulations including but not limited to those relating to the internet and data protection.
4.1 The provisions of clauses 4.2 and 4.3 shall apply only where we invoice you directly for the services. In all other cases, your supplier will invoice you for the services in accordance with any terms your supplier has agreed with you. However, if your supplier notifies us that you have not paid its invoices on or before their due date, we shall be entitled to suspend the provision of the services until such time as all outstanding invoices have been paid in full. You shall continue to be liable for the service fees during the period of suspension.
4.2 Service Fees shall be as set out in the Service Agreement. If we intend to increase the Service Fees, we shall give you 90 days' notice in writing. Notwithstanding the provisions of clause 9.1, if the increase exceeds RPI you may by notice in writing given within thirty days of the notification of increase terminate This Agreement on sixty days' notice. We shall not increase the Service Fees more than once in any period of twelve months. If the increase relates to a change in the Services provided, we shall agree with you the amount of the increase prior to the commencement of the new Services. If we intend to decrease the Service Fees, we shall notify you accordingly.
4.3 Service fees are calculated as follows. For all plans, any applicable service fees are calculated on the peak amount of server data under protection at any time during the monthly billing cycle, rounded up to the nearest full Gigabyte. The committed service fee element is charged and invoiced for either monthly or annually in advance. Additional Gigabytes are charged and invoiced for monthly in arrears.
4.4 Invoices are due for payment within 30 days of the date of the invoice. If you fail to pay any invoice on time, we reserve the right to charge you interest at the rate of 4% above the then published base rate by HSBC Plc from the date of the invoice until payment and to suspend the provision of services until you have paid all overdue invoices in full. You shall continue to be liable for the Service Fees during the period of suspension. You shall be liable for all expenses incurred in collecting charges that are in arrears, including solicitor's fees on an indemnity basis.
4.5 All charges are quoted exclusive of value added tax, which shall be charged at the rate prevailing at the time of invoice.
5.1 You and we shall comply with the provisions of the Data Protection Act 1998 and any related legislation insofar as the same relates to the provisions and obligations of this Agreement or data held by us.
5.2 You agree that we may provide IRM with your contact details for the purpose of monitoring the provision of the Services.
6.1 Subject to your compliance with the terms of This Agreement, we warrant the Services will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks which are allocated to them.
6.2 We do not warrant that the Services will be error free or uninterrupted.
6.3 Subject to the provisions of clause 6.1, all conditions, warranties and terms implied by statute or otherwise in respect of satisfactory quality, fitness for purpose or an ability to achieve a particular activity are hereby excluded.
7.1 This clause sets out the limit of our liability to you for breach of our obligations under This Agreement, or any misrepresentation, negligence or other wrongful act on our part called an "Act of Default".
7.2 We shall be liable in full and without limitation for death or injury resulting from our own negligence or that of our employees or agents.
7.3 We shall accept liability for damage for any other reason caused by an Act of Default up to a maximum aggregate liability not exceeding the total Service Fees paid by you during the period of twelve (12) months immediately preceding the date on which the event giving rise to the claim occurred.
7.4 We shall not be liable for:
7.4.1 any indirect, consequential or special loss arising from an Act of Default. Consequential loss includes loss of profits, loss of goodwill, loss of data and any type of special, indirect or other consequential loss; or
7.4.2 any loss arising from corruption of data due to the introduction of a virus or arising as a result of a problem with the internet unless you can demonstrate that it is due to our negligence or default.
7.5 You confirm that you have read and understood this clause and understand that you should take out insurance cover for any losses beyond those set out in this clause. If you require us to take on any additional liability beyond that set out in this clause, then we will consider doing so upon agreement of an increase in the Service Charges to reflect such additional liability, which must be agreed in writing between you and us.
8.1 Each of the parties undertakes to the other to keep confidential and not use for its own purpose or any one else all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received from the other party save that which is:
8.1.1 trivial or obvious;
8.1.2 already in its possession other than as a result of a breach of this clause;
8.1.3 in the public domain other than as a result of a breach of this clause;
8.1.4 for reasonable marketing or reference purposes.
8.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause by its employees, authorised agents and sub-contractors.
8.3 The provisions of this clause shall survive the termination of This Agreement.
9.1 This Agreement will run for an Initial Term beginning on the Commencement Date and ending on the day before the end of the initial Term. This Agreement will automatically be renewed for additional 12 month periods unless terminated by either party giving not less than 90 day's notice in writing to terminate This Agreement.
9.2 This Agreement may be terminated:
9.2.1 forthwith by us if you fail to pay any amount either to us or to your Supplier on or before the due date therefor;
9.2.2 forthwith by either party if the other commits any material breach of any term of This Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within 30 days of a written request to remedy the same;
9.2.3 in the event that your use of the Services is materially adversely affecting the operation of the Services for other users, we may terminate This Agreement on 14 days' notice save in the event of a technical emergency when we may immediately terminate or suspend this Agreement in which case we shall provide such notice to you via telephone and e-mail;
9.2.4 if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction).
9.3 Upon termination of This Agreement the End User shall cease to use the Services and deliver to us all software and documentation provided under this Agreement.
10.1 This Agreement (together with any documents referred to in This Agreement) constitutes the whole agreement between the parties relating to its subject matter and no variations to this Agreement shall be effective unless made in writing and signed by both parties.
10.2 Neither party hereto shall be liable for any breach of its obligations resulting from causes beyond its reasonable control for so long as such situation exists.
10.3 You shall not be entitled to assign or otherwise transfer This Agreement.
10.4 The Contracts (Rights of Third Parties) Act 1999 shall not apply to This Agreement.
10.5 No waiver by either party in respect of a breach shall operate as a waiver in respect of any subsequent breach.
10.6 If any provision of this agreement is wholly or partly invalid or unenforceable, then:
10.6.1 If by applying to it a restrictive interpretation it would not be invalid or unenforceable, that restrictive interpretation shall be applied to it; and,
10.6.2 Subject to clause 10.6.1 the part of the provision which is invalid or unenforceable shall be deleted and shall not affect the validity of the remainder of this agreement.
This Agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non-exclusive jurisdiction of the English courts.
I accept and confirm these Terms and Conditions and the related Service Agreement:
Also available as printable PDF: BackupDirect-Electronic-Vaulting-Terms-Conditions
