Remote Data Backup & Protection Service Agreement

Limitation of Liability:    The Company shall not be liable for the loss or destruction of, or damage to, Customer data produced pursuant to the Backup Services, or to the physical media upon which Customer’s data has been placed, unless such loss, destruction or damage was proximately caused by the Company’s negligence, and:

In the event of damage to, loss or destruction of Customer’s data, as described above, the Company’s sole liability shall be the refund of amounts paid by the Customer to the Company solely for the receipt and vaulting of the data transmitted which is so damaged, lost or destroyed and only for the period during which loss, damage or destruction occurred. The Company’s liability for damages hereunder shall in no event exceed the amount of fees paid by Customer to Company during the period of three (3) months immediately preceding the date on which the event giving rise to the claim occurred. IN NO EVENT SHALL THE COMPANY NOR ANY THIRD PARTY INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR SUPPORT OF THE BACKUP SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF THE BACKUP SERVICES RENDERED HEREUNDER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. IN PARTICULAR, THE COMPANY SHALL HAVE NO LIABILITY FOR ANY PROGRAMS OR DATA USED WITH THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, THE COSTS OF RECONSTRUCTING OR RECOVERY OF ANY SUCH PROGRAMS OR DATA.

1. Service Fees. All charges for service under this Agreement shall be as specified in Terms stated above. The charges for service shall remain fixed for the Initial Term (as hereinafter defined) of the Agreement (excluding renewals) and may thereafter be changed at any time upon thirty (30) days’ written notice.

2. Term. The term of this Agreement shall commence on the date of Customer’s signature or, if later, the Effective Date set forth on the front side of this Agreement. The Initial Term of this Agreement shall commence as aforesaid and shall continue for thirty (30) days thereafter (“Initial Term”). Unless otherwise provided, the term will continue with automatic renewals for additional successive terms, unless written notice of non-renewal is delivered by either party to the other not less than ninety (30) days prior to the expiration date of the then current term of this Agreement.

3. Payment. The Backup Services provided, and/or sale of Products made, pursuant to the terms of this Agreement shall be based on the prices and the terms set forth in this Agreement. Payment terms require credit card billing in advance. Therefore, monthly Agreements will be billed on the first day of the month and yearly Agreements will be billed on the first day of service. If Customer’s credit card fails to pay the charges of the Company for a period of thirty (30) days after the date of the invoice, the Company may, (a) cease providing additional Backup Services and/or (b) refuse access to data vaulted by Customer with the Company. If a Customer is consistently delinquent (defined as being late in the payment of any three (3) or more invoices in a 12-month period) and/or upon the expiration or termination of this Agreement, the Company may require payment by certified check prior to furnishing Customer with access to the data so received and vaulted by the Company. The Company shall have, and may exercise, all rights granted to warehousemen by the Uniform Commercial Code as adopted in the state where the Customer data is vaulted and managed, and the Company shall have such other rights and remedies as may be provided by law.

4. Access to Data. The Company shall, subject to the terms of Section 3 above, provide access to the Customer’s back-up data for restoration and recovery purposes on a continuous basis. Such delivery of data by Company to the Customer may be provided through (i) on-line delivery; or (ii) by media-to-media transfer and subsequent delivery thereof to the Customer. An additional charge will apply to media-to-media transfers and deliveries. The Company reserves the right to physically ship Customer’s data on media, to the Customer’s location set forth on the front side of this Agreement, or to such other location as an authorized representative of the Customer may specify in writing to the Company.

5. Ownership of Software. The Customer owns the magnetic or other physical hardware or media upon which the Software is originally recorded, but the Customer shall not obtain any rights, title or interest in and to the Software. Software, for purposes hereof, includes the Software delivered by Company to Customer following the execution of this Agreement by Customer, and all updates and enhancements in and to the Software subsequently developed by the owner of the Software and delivered by Company to Customer for use pursuant to the terms and conditions set forth herein.