DATA BACKUP SERVICE: Konicom agrees to provide an initial full backup of ONLY the ELECTRONIC DATA FILES in specific hard drive location(s) indicated by Customer. Thereafter, Konicom provides incremental and differential backups of data files in the same location(s), on a daily basis. Incremental and differential data backups will be kept for 30 days. Konicom's remote data backupservice does not cover PROGRAM FILES.
TERMS: This is a month-to-month Service Agreement. This Agreement shall be automatically renewable at the option of both parties on a monthly basis. Either party can terminate this Agreement for any reasons with a 30-day prior notice in writing.
ENCRYPTION KEY: Konicom does NOT maintain client encryption keys. It is Customer's FULL responsibility to write down the encryption key presented in the installation of service. Customer understands that without the encryption key, the encrypted data stored cannot be retrieved. Konicom shall not be held responsible for loss of encryption key.
COMMUNICATION CIRCUITS: All data files are transmitted over tele-communication company circuits, which are wholly beyond the control and jurisdiction of Konicom and are maintained by the Communications Company. Customer is responsible for the cost and maintenance of all data communication circuits at Customer's location(s) required for dutiful transmission and system access. Konicom is responsible for the cost and maintenance of all data communication circuits at Konicom's remote backup facilities.
LIMITATION OF WARRANTY LIABILITY: The Customers remedies are limited to Konicom obligations stated herein. This warranty is exclusive and it extends only to the Customer.
Incomplete data transmission. If data files cannot reach Konicom's facilities due to communication circuits/equipment failure at either Customer's location(s) or tele-communication company's site(s), or both, Konicom will not be liable for the incompletion of data backup transmission and no refund will be given under these circumstances. Konicom warrants that the equipment used to receive and store the data will be free from defects in material and workmanship for a period of one (1) year after installation. The obligation of Konicom under warranty is limited to the repair or replacement, at Konicom's option and cost, of a non-conforming product, part or component thereof, except consumable accessories, within a reasonable time after notification of defects. In the event of unsuccessful remote data backup due to Konicom's data backup equipment failure, Konicom will refund Customer for the duration of the downtime due to equipment failure and repair, based on the following fomula: refund amount = monthly total / number of days in the month X downtime (in day increment).
Data loss. Konicom makes no guarantee or warranty, including implied warranty of merchantability or fitness, that the services supplied will avert, avoid or prevent the loss of data or information or the consequences there from. Customer assumes all risk for loss or damage to the Customer's equipment and data files. Customer understands that the data is encrypted or otherwise unusable by Konicom, and agrees to hold Konicom harmless for any loss or harm to the condition of such data and releases Konicom of all liability for any claim for loss or damages to the data caused by efforts of Konicom to retrieve data. Customer will not hold Konicom or its employees accountable for any data loss due to any theft, terrorist attack or disasters.
Lawful possession. Customer signifies that it is in lawful possession of all data made available to Konicom, and that possession of such property is permissible by any local, state or federal law.
INCREASE IN SERVICE FEES: Despite the terms and conditions set forth herein, Konicom may, at any time, increase the fees and charges upon giving Customer notice in writing. In the event Customer is unwilling to pay the increased monthly charges, Customer may terminate this agreement upon giving notice in writing to Konicom. Failure to notify Konicom will constitute Customer's consent to the increase and all other terms and conditions of the agreement shall remain in full force and effect. ANY OVERAGES by Customer will automatically default Customer to the next larger plan.
WARRANTY OF CUSTOMER: The individual signed this Agreement for the Customer warrants that he/she has the authority to sign this agreement and contract for the, as well as permit the installation of systems and the activation of the services listed herein.
INDEMNIFICATION. Notwithstanding any provision of this Agreement to the contrary, Customer agrees to indemnify, hold harmless, and defend Konicom from and against any and all claims, demands, damages, loss, costs, expenses (including attorney's fees), fines, or penalties arising out of, or as a consequence thereof, or related to Konicom's performance of this Agreement, including but not limited to bodily injury, property damage and any act, error or omission to act on the part of the Customer or its employees, agents, or independent contractors, or the invitees of any of them.
ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
AMENDMENT. This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties.
SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or elimination of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
DISPUTE RESOLUTION AND JURISDICTION: Claims, disputes or other matters in question between Konicom and Customer, arising out of or relating to this Agreement, shall be submitted to a senior level representative of each party for resolution. In the event that said representatives are unsuccessful in agreeing to a resolution, the dispute shall be submitted to non-binding mediation within ninety (90) days, with each party to share equally in the cost. In the event that mediation is unsuccessful, either party may pursue all remedies at law and court proceedings in Sacramento County. The prevailing party in any legal action, including arbitration, is also entitled to recover its reasonable attorney's fees and costs incurred in the prosecution or defense of the matter.
APPLICABLE LAW. This Agreement shall be governed by the laws of the State of California.