DataVault Solutions Service Level Agreement

This Service Level Agreement (the “Agreement”) is made and entered into on 9/4/2013 (“Effective Date”), by and between DataVault Solutions, Inc., a North Carolina Company, with its principal place of business at 1625 South Boulevard, Suite 208, Charlotte, NC 28203 (“DVS”) and Subscriber (“You”, “Your”, “Customer”,“Client”). For purposes of this Agreement “Data” shall be deemed to include any information transmitted from your computer using the Service. DVS agrees to provide the Client online backup services (the “Service”) for your computer and any subsequent computers that you may opt for backup as described in this Service Level Agreement (the “SLA” or “Service Level Agreement”). For purposes of this Agreement “Data” shall be deemed to include any information transmitted from your computer using the Service.

1. Service Level Agreement Overview

This Service Level Agreement (“SLA”) provides Client with certain rights and remedies regarding the performance of the DVS Network. The “DVS Network” means the DVS owned and operated Internet Protocol (IP) routing infrastructure through which DVS provides Internet connectivity and IP routing and transit to its clients. This SLA applies only to Network Outages (as defined herein) on the DVS Network. It does not apply to DVS-branded connectivity services (e.g., DSL) or other services that DVS may provide.

1.1 Network Availability

Our goal is to make the DVS Network available 100% of the time, free of Network Outages. A “Network Outage” is an instance in which you are unable to transmit IP packets from the DVS Network to the public Internet, and receive packets sent to the DVS Network from the public Internet, for more than fifteen (15) consecutive minutes.

For the purposes of this agreement, a Network Outage is deemed to begin at the time you notify us of the outage via our online ticketing system, or, if the ticketing system itself is unreachable, via telephone; and to end at the first time thereafter that our administrators successfully perform a trace route to Client’s internal network from outside the DVS Network.

1.2 Client Permission

Client expressly grants DVS and DVS’s third party service providers, for the purpose of providing the Services described in this Agreement, the right to access the Client Equipment and the right to reproduce the Client Files.

1.3 The Service Provider will:

  • Maintain appropriately trained staff;
  • Communicate in writing issues regarding service levels, change management, etc.;
  • Meet response times;
  • Maintain hardware within standard life cycles.

1.4 Credit for Network Outages

Subject to the exceptions set forth in this Agreement, DVS will issue you a credit for each Network Outage that you report to us and that we confirm by analysis of our router logs equal to the number of hours (or portions of hours) that the Network Outage persists, up to a maximum of fifty percent (50%) of your monthly base service plan fee. Network Outages separated by less than one hour shall be treated as a single Network Outage. The “monthly base service plan fee” consists of the base monthly fee paid by the Client under the applicable service plan, exclusive of all other fees which might be charged to the Client, including, by way of example only and without limitation, fees for set-up, bandwidth usage in excess of that included in the service plan, data storage, extra IP addresses, backup service, or any other services other than those available without additional charge under Client’s service plan.

Requests for credit must be made by e-mail to helpdesk@datavaultsolutions.com within seven days of the Network Outage for which credit is requested, and must include the date and time your Web site was unavailable, and the duration of the outage. DVS may require that you provide additional information before issuing a credit. Credits will usually be applied within two billing cycles of your request. All credits are exclusive of taxes.

1.5 Confidentiality

1.5.1 No Use. DVS agrees to maintain the data in strict confidence and, except as provided herein, not to divulge any of the Client’s data to any third party.

1.5.2 Non-Disclosure. DVS agrees to use its best efforts to prevent and protect the Confidential Information, or any part thereof, from disclosure to any person other than DVS’s employees for the use of processing.

1.5.3 Protection of Secrecy. DVS agrees to take all steps reasonably necessary to protect the secrecy of the Confidential Information, and to prevent the Confidential Information from falling into the public domain or into the possession of unauthorized persons.

1.5.4 Secure Transmission. The Confidential Information that Client transmits to DVS is transmitted using third party encryption tools that, to the best of DVS’s knowledge, are secure.

1.6 Liability

The Client understands that the internet is made up of many digital/analog interface points that include computers, optical interfaces, cable and copper connections, etc., owned and controlled solely by third party entities. Therefore DVS shall not be held liable for any missing data.

1.7 Term and Termination

The obligations of this Agreement shall continue for the duration of the Client/DVS relationship, unless altered in writing and agreed to by both parties. DVS reserves the right to terminate the relationship at its discretion. All annual subscriptions will automatically renew on the anniversary date.

1.8 Exceptions

Client shall not receive any credits under this SLA in connection with any failure of deficiency of the Services or a failure to meet the SLA that is caused by or associated with any of the following:

i) Circumstances beyond DVS’s reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, acts or omissions of third party not engaged or authorized by DVS, embargo, fire, acts of God, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service Level Agreement;

ii) Failure of access circuits to the DVS Network unless such failure is caused solely by DVS;

iii) Failure of Client’s Internet access service, unless such service is provided by DVS and failure is caused solely by DVS;

iv) General third party Telco failure;

v) Failure of Client Equipment used in connection with the Data Backup Services;

vi) Downtime during scheduled maintenance or Emergency Maintenance (as defined below);

vii) Outages caused by hackers, sabotage, viruses, or other third party wrongful actions;

viii) DNS issues outside the direct control of DVS; or

ix) Any other acts or omissions of Client or others authorized by Client, including without limitation, any negligence, willful misconduct, or use of the DVS Network or DVS services in breach of DVS’s Terms and Conditions and Acceptable Use Policy.

x) Between the “DVS Network” and the Client connections to the internet, considered public space.

xi) “Emergency Maintenance” refers to any corrective action intended to remedy conditions likely to cause severe Service degradation, as designated by DVS in its sole discretion. Emergency Maintenance may include but is not limited to actions intended to address hardware or software failures or viruses/worms.

1.9 General

DVS reserves the right to change or modify this SLA at any time without prior notice. Changes are effective upon posting at www.datavaultsolutions.com. Except as set forth in this SLA, DVS makes no claims regarding the availability or performance of the DVS Network. Notwithstanding anything in this SLA to the contrary, the total amount credited to a Client in connection with Network Outages in any calendar month will not exceed the base service plan fees paid by that Client to DVS for that month. THE CREDITS DESCRIBED IN THIS SERVICE LEVEL AGREEMENT PROVIDE YOUR SOLE AND EXCLUSIVE REMEDY FOR NETWORK OUTAGES AND/OR INTERRUPTIONS IN CONNECTIVITY. DVS CANNOT UNDER ANY CIRCUMSTANCES ISSUE CREDIT OTHER THAN THOSE DESCRIBED IN THIS SERVICE LEVEL AGREEMENT.

2. Remote Backup Overview

This Service Level Agreement (“SLA”) applies to Clients of DVS’s Remote Backup services as set forth in the Secure Offsite Backup Confidential Disclosure and Usage Agreement (the “Remote Backup Services”). Capitalized terms not otherwise defined in this SLA shall have the meanings set forth in the Agreement. Except to the extent otherwise specifically provided herein or in the Agreement, this SLA becomes effective immediately upon the initiation of the Remote Backup Services. The following SLA provides Client’s sole and exclusive remedies regarding the performance of the Remote Backup Services. The amount of credit available per month is subject to a cap as described below.

2.1 Application of Data Backup and Restore SLA

This Data Backup and Restore Service Level Agreement (“SLA”) for Basic Plans applies to Clients of DVS’s Data Backup, Retention and Restoration services set forth in Sections 2.2, 2.3, and 2.4 below (collectively, the “Data Backup Services”). Capitalized terms not otherwise defined in this SLA shall have the meanings set forth in the Agreement. Except to the extent otherwise specifically provided herein or in the Agreement, this SLA becomes effective immediately upon the initiation of the Remote Backup Services.

2.2 Data Backup Services and Data Backup

DVS will back up all files and file systems designated by Client (“Files”) by establishing a network connection from Client’s Equipment to DVS’s storage infrastructure. DVS will back up the Files in accordance with and subject to the schedule established on the Client’s Critical Data Backup Worksheet “CCDBW”.

For each day in each calendar month during the Term in which DVS fails to restore Files in accordance with the CCDBW and as the Client’s sole and exclusive remedy for such failure, Client will receive a credit equal to one day’s worth of the total recurring monthly fees paid by Client to DVS for the applicable calendar month Services.

2.3 Retention

Files and transaction logs stored (“Stored Files”) will be retained in accordance with the Retention Schedule as outlined on the CCDBW, after which, DVS may, at its option, destroy the Stored Files. Unless otherwise designated, Stored Files will be retained on the Premises.

2.4 Restoration

DVS will initiate restoration of Stored Files that are retained on the Premises within two hours during business hours (08:00 – 17:00est Monday to Friday) and within four hours outside of business hours, from the receipt and acknowledgement of the Client’s written request. Database files backed up by DVS will be recoverable within 24 hours from the initial request. Subject to CCDBW, for each restore which DVS fails to successfully initiate within the time periods provided in above, and as the Client’s sole and exclusive remedy for such failure, Client will receive a credit equal to one day’s worth of the total recurring monthly fees paid by Client to DVS for the applicable calendar month for Data Backup Services.

In the event of any data loss by the client, DVS will make all reasonable efforts to provide expert guidance to the client in order to restore the system to its original operational state. DVS will provide such guidance as is necessary to work with the Client or its suppliers in order to ensure that system files and data files are restored to the original location, temporary location, or any replacement hardware subject to the condition that such replacement material is correctly configured, specified and available.

2.5 Floating Storage Levels

Each client account will be established at the appropriate Storage Level based on the amount of data needing daily backup. This service is billed monthly, and will reflect the variances of data storage that occur within the previous billing cycle.

2.6 Limitations

The Data Backup Services are not intended to be a comprehensive disaster recovery solution. Except as set forth in this SLA, DVS makes no claims regarding the availability or performance of the Data Backup Services.

3. Virtual Machine Overview

This Service Level Agreement (“SLA”) is to define Virtual Server Collocation services provided by DVS to a Client. DVS will typically use the standard Virtual Machine configuration as defined in the SLA. This agreement becomes effective immediately upon the initiation of virtual services.

3.1 Responsibilities

This SLA between the Client and DVS establishes a commitment for Virtual Server Collocation as detailed in this Agreement. This Agreement does not offer or provide for restoration services. DVS offers restoration services under separate agreement on a per incident basis.

The following service(s) are provided to the Client by this agreement:

The Client will be provided a Virtual Machine in a DVS ESX Server with redundant UPS protected power, appropriate cooling, and network connectivity as outlined in the attached worksheet;
The Client virtual machine will be sized in accordance with the Clients specific requirements as outlined in the Virtual Server Worksheet;
DVS will monitor the guest operating system for the Client and establish notifications on an option basis, which is strongly recommended;
DVS will communicate outages affecting the servers to the contacts provided by the Client.
The following services are not provided under this Agreement:

Maintenance of the Operating System, applications or content on the server;
Updating Client provided contacts. This is solely the Client’s responsibility.

3.2 Service Requirements

The Client will:

  • Be responsible for upgrading the VM tools version in concert with DVS when an ESX upgrade or patch recommends updating;
  • Is responsible maintaining their operating system for compatibility with ESX;
  • Follow appropriate procedures and requirements specified by the Network Security team;
  • Acquire and purchase all necessary software for their environment;
  • Provide accurate contact information to DVS and update that information as necessary;
  • Contact DVS to decommission a VM. The time and date for decommission will be arranged at that time;
  • Notify DVS of all user account changes as required under SPLA Licensing Terms.

The Client should:

  • Ensure that all 3rd party applications are covered by a vendor maintenance agreement.

DataVault Solutions Confidentiality Disclosure

1. Disclosure

Client agrees to transmit, and DVS agrees to receive and store the Confidential Information under the following conditions:

2. Limits on Confidential Information

DVS shall have no obligation with respect to such information where the information is ordered to be publicly released by the requirement of a government agency. DVS reserves the right to refuse storage of any illegal data or data that is not considered critical to business continuity, such as pornographic material or any other non-business related data that would otherwise create a liability to Provider.

3. Ownership of Confidential information

DVS agrees that all Confidential Information shall remain the property of Client, and that Client may use such Confidential Information for any purpose without obligation to DVS. Nothing contained herein shall be construed as granting or implying any transfer of rights to DVS in the Confidential Information, or any patents or other intellectual property protecting or relating to the Confidential Information.