BD1 Total Backup Solutions

SOFTWARE LICENCE AND SERVICE AGREEMENT

THIS DOCUMENT FORMS A CONTRACT (THE ‘CONTRACT’) BETWEEN YOU (HEREINAFTER REFFERRED TO AS ‘THE CUSTOMER’) AND BD1 SERVICES LTD. BY USING THE PRODUCT OR SERVICE AS DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS CONTRACT AND YOU AGREE TO BE BOUND BY IT FOR A MINIMUM PERIOD OF 24 MONTHS FROM THE DATE OF COMMENCEMENT.

Definitions

For the purposes of this agreement the following definitions are applicable;

“BD1 Services Ltd” - BD1 Services Limited and its subsidiaries (as defined in s.736 of the Companies Act 1985).

“The Product” - Software provided by BD1 Services Ltd for the facilitation of connection between devices for the purpose of transmitting information to be stored.

“The Service” - Data backup service provided by BD1 Services Ltd contained within this agreement.

“Minimum Period” - This agreement will be effective for a minimum fixed period of 24 months unless otherwise specified on the contract.

IT IS AGREED THAT:

1. General

1.1  BD1 Services Ltd. agrees to license to the customer, software (the "Product") to be used in conjunction with a data backup service ("Service") provided by BD1 Services Ltd. The Customer may install and copy the Product solely for the purpose of evaluating or utilising the Service. Any other use is strictly prohibited.

1.2  By accepting or using the producBD1 Services Ltd maintains all rights, title and interest including without limitation, copyright (and all extensions and renewals of copyright), throughout the world, in and to the Product or any part thereof.

1.3  Under the terms of this Contract, in consideration of the fees the Customer pays to BD1 Services Ltd, in accordance with section 4 below, BD1 Services Limited will extend the term of this license for the period during which the Customer is engaging BD1 Services Ltd in respect of the Service. The Customer may use the Product only in conjunction with The Service.

1.4  Acceptance of this agreement constitutes the customer’s express written consent to allow the transfer of any personal data outside the countries of the European Economic Area. As required by the Data Protection Act 1998 BD1 Services Ltd shall comply with the obligations set out in the seventh principle of Schedule 1 in respect of all processing carried out on the customer’s behalf.

1.5  The Customer agrees not to use the Software or Services in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or life support applications, devices or systems.

1.6  The Customer specifically agree not to make any attempt to modify, decompile or reverse engineer the Product or otherwise discover the source code or underlying processes or algorithms of the Product.

1.7  The Customer will not use the Services for the transfer, storage or retention of information, data or material that;

1.7.1  Infringes on the intellectual property rights of any third party or any rights of publicity or privacy;

1.7.2  Violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing, unfair competition, anti-discrimination or false advertising);

1.7.3  Is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing;

1.7.4  Is obscene, pornographic or indecent in violation of applicable law;

1.7.5  Contains any virus or other programming routine intended or with the potential to damage any system or data; or

1.7.6  Is provided in breach of any prior contractual commitment to any third party.

2. Warranty

2.1  BD1 Services Ltd warrants that the Product and Service will perform substantially in accordance with the help file that accompanies the Product for the duration of the customer’s use of the Service.

2.2  If the Product of Service fails to perform as promised in this Contract, the customer sole and exclusive remedy shall be the return of fees paid for use of the Product or Service during the period for which the Product or Service failed to perform as promised.

2.3  Notwithstanding the foregoing, if any failure of the Product or Service has resulted from abuse, misapplication, or unauthorised use, the limited warranty provided by this Contract is and shall be void.

2.4  Under no circumstances will BD1 Services Ltd be liable for data that was not sent by The Customer, using the Product, to the backup data centre. The Customer is therefore advised to check the log file to ensure that the desired files have been transmitted.

2.5  To the maximum extent permitted by applicable law the Customer acknowledge that the BD1 Services Ltd's obligations and liabilities in respect of the Product are exhaustively defined in this Contract. The Customer agrees that the express obligations and warranties made by BD1 Services Ltd in this agreement are in lieu of and to the exclusion of any warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this agreement including (without limitation) as to the condition, quality, performance, or fitness for the purpose of The Product or any part of it.

2.6  The Customer is responsible for the consequences of any use of the Product. BD1 Services Ltd will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatsoever and however caused, whether arising under contract, tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if BD1 Services Ltd has been advised of their possibility.

2.7  BD1 Services Ltd accepts liability to the extent it results from the negligence of BD1 Services Ltd and its employees for:

2.7.1  Death or injury without limit; and

2.7.2  Physical damage to or loss of the Customer's tangible property up to the amount of the Price in respect of each incident or series of connected incidents.

2.8  In all other cases not falling within clause 2.6 BD1 Services Ltd's total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Contract or based on any claim for indemnity or contribution will not exceed the Price.

2.9  The Customer agrees that, except as expressly provided in clause 2 herein, BD1 Services Ltd will not be under any liability of any kind whatsoever and however caused arising directly or indirectly in connection with this Contract. The Customer will indemnify BD1 Services Ltd in respect of any third party claim for any injury, loss, damage or expenses occasioned by or arising directly or indirectly from the customer possession, operation, use or modification of the Product except and in so far as BD1 Services Ltd is liable as expressly provided in this Agreement.

2.10  The Customer acknowledges and agrees that the allocation of risk contained in clause 2 herein is reflected in the Price paid for the Product and Service and is also recognition of the fact that inter alia it is not within BD1 Services Ltd's control how and for what purpose the results of The Service are used by The Customer.

3. Term

3.1  When the Customer agrees to the terms of this Contract, The Customer acquires a license to use the Product. The User's license to use the product is valid only for so long as the Customer maintains use of and payment for The Service provided by BD1 Services Ltd. At no time and under no circumstances does the Customer acquire any rights of ownership whatsoever in The Product.

3.2  The license provided by this Contract expires immediately upon;

3.2.1  BD1 Services Ltd receiving actual notice from The Customer that The Customer wishes to cancel the Service, or

3.2.2  The Customer failing to pay applicable service charges due under this agreement within 15 days of those charges being due for payment.

3.3  The Customer’s license will also terminate without further action or notice by BD1 Services Ltd should The Customer become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with the customer creditors, have an administrator, administrative receiver or receiver appointed or suffer or file any similar action in consequence of debt.

3.4  Following termination of The Customer license for whatever reason:

3.4.1  The Customer will uninstall and destroy the software together with all copies in any form, including copies on The Customer hard and backup disks.

3.4.2  Any use of any copies of the software will be unlawful; and BD1 Services Ltd shall have the right to delete The Customer’s stored Data without liability for loss or damage.

3.4.3  BD1 Services Ltd will remove and destroy all of The Customer’s data backed up or stored by BD1 Services Ltd during the use of the service within 30 days of the termination date of this agreement.

4. Services

4.1  BD1 Services Ltd agree to provide a data backup service to The Customer whereby

4.1.1  Data transferred to BD1 from The Customer via The Product will be stored securely by BD1 Services Ltd.

4.1.2  Data transfer will be automated via The Product and will be transmitted, checked and stored on a daily basis.

4.1.3  In the event of The Customer requesting access to or transfer of a copy of data stored by BD1 Services Ltd on behalf of The Customer, BD1 will provide access to the data.

5. Charges and Bands

5.1  The Customer agrees to pay BD1 Services Ltd for provision of the Service as per The Billing Guide at annex A of this agreement.

5.1.1  Prices shown within the relevant bands are subject to change and are dependent upon the service package selected and the amount of data that is being stored.

5.2  The Customer will be charged on a monthly basis for the provision of the service.

5.3  The Customer will pay BD1 Services Ltd all sums due to for the provision of The Service monthly by Direct Debit.

5.4  At the commencement of this agreement The Customers data backup requirements will be estimated based upon information provided to BD1 Services Ltd by The Customer. The Customer will be placed in the appropriate billing band based on this estimate.

5.5  The Customer’s use of the data backup will be monitored and recorded daily. At the end of each month The Customer’s total use of The Service will be assessed, should the customer be at that time categorised in an inappropriate band The Customer will be notified in writing and The Customer’s catagorisation will be amended.

5.6  At any time The Customer may request and be provided with a detailed breakdown of the calculation of data backup use that is used by BD1 Services Ltd for the categorization of The Customer’s band.

6. Evaluation

6.1  Prior to the commencement of this agreement The Customer will have 14 days to evaluate The Service.

6.2  Should the Customer wish to discontinue use of The Service at the expiry of the evaluation period, The Customer will need to notify BD1 Services Ltd 7 days prior to the expiration of the evaluation period, of its intention to terminate the agreement.

6.3  Failure to notify BD1 Services Ltd within the specified time frame is an acceptance of this agreement for the minimum period specified herein. The Customer will be liable for the full service agreement value for the entirety of the minimum period of this agreement

6.4  If the Customer terminates the customer contract with BD1 Services Ltd prior to the expiry of the minimum period or any fixed renewal period, otherwise than by reason of any breach of this Contract on the part of BD1 Services Ltd, the Customer will be liable to make a one-off payment for the length of time remaining under the contract calculated on the banding rate applicable to the customers highest rate of usage of the Service.

7. Renewal

7.1  At the end of the contract Period, the Contract will automatically renew for a further equal period unless otherwise agreed to by BD1 Services Ltd. in writing at least 30 days prior to the end of the Period.

8. Termination

8.1  The Customer understands and accepts that BD1 Services Ltd cannot infer termination of the customer account simply as a result of backups not occurring.

8.2  The Customer understands that until notification of The Customer’s intention to cancel The Customer’s account is received by BD1 Services Ltd and such notification is confirmed back to The Customer in writing, The Customer’s account remains active and billable.

8.3  Without prejudice to either party’s rights under the Agreement, BD1 Services Ltd or The Customer shall have the right to terminate this Agreement without notice and with immediate effect in the event that the other party:

8.3.1  Goes into liquidation, becomes insolvent or has an administrator, receiver or similar officer appointed in respect of all or part of its undertakings

8.3.2  Is the subject of a filing with any court for the appointment of any such officer; or

8.3.3  Commits a material breach of the Agreement which is not remedied within 28 days of receipt of a notice from the other party specifying the breach and putting the defaulting party on notice of the non-defaulting party's intention to terminate the Agreement with effect from the expiry of the notice period if such breach has not been remedied to it’s reasonable satisfaction.

9. Entire and Final Agreement

9.1  This agreement shall constitute the entire agreement and understanding between the parties with respect to all matters, which are referred to and shall supersede any previous agreement(s) between the parties in relation to the matters referred to in this agreement.

10. Force Majeure

10.1  Neither party shall be liable for any failure or delay in performance of this agreement, which is caused by circumstances beyond the reasonable control of that party including but not limited to acts of war, acts of God, earthquake, flood, riot, embargo, government act or failure of the Internet.

11. Governing Law

11.1  This Agreement will be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the non-exclusive jurisdiction of the Courts of England and Wales.

12. Supervening Illegality and Severance

12.1  Any provision of this Agreement which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions of this Agreement, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction.

13. Disputes

13.1  BD1 Services Ltd and the Customer will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this agreement or any breach of it. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to try and resolve the dispute.

13.2  Nothing contained in this agreement shall restrict either party's freedom to commence legal proceedings to preserve any legal right or remedy or protect any proprietary or trade right.

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