Online Backup Service Contract
By submitting your first payment to Gillware Data Services, you agree to the following terms and conditions (the "Agreement") governing your use of the Gillware Remote Backup Service (the "Service"), which shall be in effect and binding for the entire duration of your receipt of the Service. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "You" or "Your" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the Service.
Gillware Data Services, LLC ("Gillware Data Services") agrees to provide you the Service for any Electronic Data Storage Devices you choose to enroll (hereinafter "Storage Devices") according to the Plan Option selected, in accordance with the following Terms and Conditions.
Terms and Conditions
Term of Agreement
Your agreement with Gillware Data Services shall be month to month. Early cancellation for prepaid service is addressed in Section 4 below.
All charges for the Service under this Agreement shall be as specified in the pricing schedule. The monthly fee for the Plan Option you selected shall remain fixed for prepayments under the service plan. Otherwise, Gillware Data Services reserves the right to alter its fees at any time. You will be provided with thirty (30) days' advance notice of any changes.
An invoice will be sent to you each month. Payment is due within 30 days of receipt of invoice. If you have chosen to prepay for the Service, your remaining credit will be reflected on each invoice. If you fail to pay any outstanding charges for a period of seventy-five (75) days after the date of the invoice, Gillware Data Services may, after giving ten (10) business days notice by email, at its option (a) cease providing the Service and delete all data transmitted to it by you and/or (b) refuse requests to restore your data. IN THE EVENT GILLWARE DATA SERVICES TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY OR THROUGH YOU. Nothing herein shall preclude Gillware Data Services from pursuing other remedies authorized by statute or otherwise.
Cancellation Rights and Charges
Month to month service can be cancelled at any time, with your final invoice reflecting your final month of service.
In the event that you prepay for services, you will not be eligible for a refund or credit in the event you decide to terminate Service.
If, during your first month, you decide that you do not want to continue with the Service, you may cancel the Service on or before the due date on the invoice and ignore the initial invoice.
Notice of cancellation should be sent to Gillware Data Services and should include company name, contact name, telephone #, address and requested cancellation date.
5.1 Acts Beyond Gillware Data Services' Control
Gillware Data Services shall not be deemed to be in breach of this Agreement if its obligations are delayed or prevented by any reason of any act of God, war, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
5.2 Ownership Warranty
You warrant that you are the owner or legal custodian of the data transmitted to Gillware Data Services pursuant to the terms of this Agreement and that you have full authority to transmit said data and direct its disposition in accordance with the terms of this Agreement.
"Confidential Information" means any information (without regard to the medium on which such information may be recorded, whether written, visual, audio, graphic, computerized or otherwise) concerning or relating to your property, business and affairs and specifically includes data transmitted from any Storage Device to Gillware Data Services Servers. Confidential Information shall be held in confidence by Gillware Data Services and shall be used only for the purposes provided for in this Agreement. Gillware Data Services shall use the same degree of care to safeguard your Confidential Information as it utilizes to safeguard its own Confidential Information. Gillware Data Services may comply with any subpoena or similar order related to data on the server located within a Gillware Data Services authorized facility, provided that Gillware Data Services notifies you promptly upon receipt thereof, unless such notice is prohibited by law. You shall pay Gillware Data Services' reasonable charges for such compliance.
You agree to fully indemnify and hold harmless Gillware Data Services and its employees and agents for any liability, cost or expense (including litigation expenses and reasonable attorneys' fees) arising out of (i) Gillware Data Services' possession of your data, or (ii) your breach of the terms and conditions of this Agreement.
5.5 Third Party Indemnification
You agree to fully indemnify and hold harmless any resellers, suppliers or licensors for any and all claims relating to the Service, or otherwise relating to the Gillware Data Backup Licensed Software, including, but not limited to, any cause of action based on warranty, contract, tort, strict liability, patent, equity or copyright infringement or misappropriation of intellectual property.
5.6 Modification; Authority; Assignment
Gillware Data Services may modify any aspect of this Agreement upon 30 days prior notice. Should you wish to terminate the Service as a result of such modification, you may do so by sending a Termination Notice to Gillware Data Services any time prior to the effective date of such modification. You acknowledge that you have the authority to enter in to this Agreement on behalf of your company and that you may authorize other individuals to purchase additional services. This Agreement binds any of your authorized users, as well as your heirs, executors, successors, and assigns and cannot be changed orally. As a condition precedent to your installation of the Service, you must elect to accept the End User License Agreement and this Service Contract. In the event you elect not to accept such agreements, this Agreement shall automatically terminate without further action or notice and without liability to any party. CUSTOMER IS ADVISED TO CAREFULLY REVIEW THE END USER LICENSE AGREEMENT AS WELL AS THIS SERVICE CONTRACT FOR IMPORTANT INFORMATION REGARDING SERVICE REQUIREMENTS, USAGE RESTRICTIONS AND SUPPORT FUNCTIONS RELATING TO THE SERVICE. This Agreement may not be assigned by you (other than to an affiliate which shall assume the obligations of its assignor by written instrument) without the written consent of Gillware Data Services, which shall not be unreasonably withheld or delayed. This Agreement may be terminated and/or assigned by Gillware Data Services to any authorized provider of the Service by giving 30 day notice to you.
5.7 Governing Law; Jurisdiction
This Agreement is governed by the laws of the State of Wisconsin, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of Wisconsin, Dane County; provided, however, that Gillware Data Services shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions in order to enforce Gillware Data Services' rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief.
This Agreement, the End User License Agreement, and any supplemental agreements with respect to the Service constitute the entire understanding between Gillware Data Services and you with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by Gillware Data Services in writing. You shall be responsible for and shall pay, and shall reimburse Gillware Data Services on request if Gillware Data Services is required to pay any sales, use, value-added or other tax (excluding any tax that is based on Gillware Data Services' net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Service.