Agility Recovery Product Terms (January 2020)

THESE TERMS TOGETHER WITH YOUR EXECUTED DOCUMENTATION INCORPORATING THESE TERMS BY REFERENCE (COLLECTIVELY THE “AGREEMENT”) GOVERNS YOUR USE OF AGILITY PRODUCTS, EQUIPMENT AND/OR SERVICES (COLLECTIVELY THE “SERVICES”). BY ACCEPTING THIS AGREEMENT AND/OR BY USING THE SERVICES YOU AGREE TO THE TERMS OF THE AGREEMENT. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

  1. SERVICE FEES AND PAYMENTS
    In addition to fees described in the Agreement, the Customer shall reimburse Agility for any applicable taxes (excluding taxes on income), customs, duties and government impositions and charges incurred in connection with the Agreement. Agility reserves the right to increase Service fees by 5% annually. Should Customer fail to pay any invoice by its due date, Customer will be responsible for paying Agility all late payment and/or interest charges as outlined in such invoice.
     
  2. TERM
    After the initial term of the Agreement, the Agreement shall automatically renew for like periods unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
  1. EXPENSES
    Customer shall be responsible for recovery or test event expenses incurred, including, but not limited to; setup or uninstall of the Services, travel and living expenses of Agility personnel, network engineering, satellite space segment charges, rental fees, usage fees, fuel charges, and transport of the Services to and from the Customer’s recovery facility or test location. Upon request, Agility will provide an estimate of costs to Customer for approval prior to deployment. The approved estimated cost of recovery is considered to be a purchase order for billing purposes. For the purposes of approval pursuant to this section, each party (i) consents to the signing of the estimated cost of recovery via Docusign and (ii) agrees to obtain any necessary consent of, and give all necessary notice of such Docusign agreement to, its relevant personnel.. In a disaster declaration where time may be of the essence and written approval impracticable, each party (i) consents to the recording of telephone conversations between the relevant personnel of the parties in connection with authorization of expenses, (ii) agrees to obtain any necessary consent of, and give any necessary notice of such recordings to, its relevant personnel and (iii) agrees, to the extent permitted by applicable law, that recordings may be submitted in evidence for any dispute arising from the Agreement.
  1. RISK OF LOSS OR EQUIPMENT DAMAGE
    Customer shall bear the risk of loss and/or damage to all equipment from the time such equipment is delivered to Customer’s premises (in accordance with Customer’s instructions) until Agility retakes possession of such equipment. Notwithstanding the foregoing, Customer shall not be liable for loss or damage to deployed equipment caused by Agility employees or contractors.
     
  2. LIMITATION OF DAMAGES
    Agility shall have no liability for damages resulting from personal injury, death or property damage, except to the extent such injury, death or property damages results from the gross negligence or willful misconduct of Agility employees. Under no circumstances shall a party be liable to the other for indirect, punitive, special, exemplary or consequential damages (including, but not limited to, lost profits, loss of business or other economic loss) in connection with or arising out of this Agreement or any of the Services rendered or equipment supplied under this Agreement.
  1. MULTIPLE DISASTERS
    A “Multiple Disaster” means a period when one (1) or more disasters are declared by Customer and one (1) or more disasters are declared by another customer of the Services; entitling Customer and such other customer access to use all of or part of the same Services for the same or an overlapping period of time. The availability of the Services during a Multiple Disaster shall be on a first-come, first-served basis and Agility shall not under any circumstance be liable to Customer for any lack of availability.
     
  2. REPRESENTATIONS AND WARRANTIES
    Agility warrants that the Services required to be performed hereunder will be performed in a competent and workmanlike manner. Equipment provided hereunder may be substituted by equivalent or better goods at Agility’s discretion. Customer’s sole remedy and Agility’s sole obligation in the event of a breach of the foregoing warranty shall be for Agility, at Agility’s option: (i) to re-perform the defective Services or (ii) to refund the amounts paid by Customer for the Services which were not as warranted. EXCEPT FOR THE WARRANTY IN THIS SECTION, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING, ARE HEREBY EXPRESSLY DISCLAIMED.
  1. FORCE MAJEURE
    “Force Majeure Event” means an event that is beyond the reasonable control of Agility (including, but not limited to, acts of God, acts of terrorism, strikes, lock-outs, wars and war operations, failures that result from equipment owned or operated by third parties not affiliated with Agility, restraints of government, lack or unavailability of the Internet or any communication systems, or severe inclement weather) which Agility believes will delay or prevent it from performing any obligation under this Agreement. Agility shall provide the Customer with reasonable notice of any Force Majeure Event, and to the extent and for the period of time that Agility is delayed or prevented from performing any obligation under this Agreement because of a Force Majeure Event such performance shall be excused. Agility shall be not liable to the Customer or be deemed to have breached this Agreement for any failure or delay in the performance of all or any portion of its obligations under this Agreement if such failure or delay is due to any Force Majeure Event. Agility will use commercially reasonable efforts to restore and provide contracted Services under this Agreement as soon as reasonably feasible after a Force Majeure Event.

9. INDEMNIFICATION

Agility and Customer (each an “Indemnifying Party”) shall defend, indemnify and hold harmless (collectively “Indemnify”) the other and its affiliates, and its and their officers, directors, employees, agents, affiliates, successors and assigns (the “Indemnitees”), from and against any and all costs, damages, liabilities, losses, fines, fees and expenses (including reasonable attorneys’ fees) (collectively “Costs”), arising out of or related to any third-party claim, demand, or action (each, a “Claim”) for (i) any alleged injury to or death of persons (including but not limited to third parties, employees of Customer or Agility) and any alleged loss of or damage to property (including but not limited to that of Customer or Agility and their respective employees) to the extent caused by the gross negligence or willful misconduct of the Indemnifying Party and its employees, and agents in connection with the performance of this Agreement; and (ii) any breach by the Indemnifying Party of any of its material obligations under this Agreement.

The Indemnifying Party’s obligation to Indemnify the other party’s Indemnitees is contingent upon (i) the Indemnitee’s providing the Indemnifying Party with prompt written notice of any Claim (provided, however, any failure to provide such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent materially prejudiced thereby) and (ii) the Indemnitee’s providing the Indemnifying Party other with reasonable cooperation and assistance (at the Indemnifying Party’s cost and upon its request) in the defense and settlement of any such Claim. The Indemnifying Party will not enter into any settlement that requires it to admit any wrongdoing without the other party’s prior written consent. The Indemnitee may, at its option, participate in the settlement or defense of any Claim with its own counsel at its own expense.

  1. CONFIDENTIALITY
    All non-public information that is designated as confidential or which a reasonable person should All non-public information that is designated as confidential or which a reasonable person should understand as being confidential shall be regarded as confidential information hereunder (“Confidential Information”). Each of the parties (the “Receiving Party”) shall not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose other than to perform its obligations hereunder. The Receiving Party shall not disclose any of the Disclosing Party’s Confidential Information to any third party other than its employees, agents and representatives who have a need to know such information in order to perform the Receiving Party obligations hereunder. Information, however, shall not be considered Confidential Information hereunder if it (i) is or becomes a part of the public domain through no breach of this Agreement by the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure; (iii) is lawfully disclosed to the Receiving Party by a third-party that had the right to make such disclosure without restriction on disclosure; or (iv) is independently developed by the Receiving Party without the use of any of the Disclosing Party’s Confidential Information. The Receiving Party shall not be in violation of this Section for disclosure of the other party’s Confidential Information that is required to be disclosed pursuant to law or governmental or judicial process (collectively, “Legal Process”), provided that (i) notice is promptly provided (if lawful) to the Disclosing Party in order that it may have every opportunity to intercede in such process to contest such disclosure and/or seek a protective order; (ii) discloses only as much Confidential Information as is necessary to comply with the Legal Process; and (iii) identifies the information disclosed as being Confidential Information of the Disclosing Party. Any Legal Process disclosure shall not make the disclosed information non-confidential. Upon termination or expiration of this Agreement for any reason, all Confidential Information of the other party (including analyses, copies and extracts thereof) shall, at the Disclosing Party’s written request, be promptly returned or destroyed.
  1. TERMINATION
    Either party may terminate this Agreement if the other party is in Default. “Default” shall mean when the party: (i) materially breaches this Agreement and fails to cure such breach within 30 days of receiving written notice of the breach, or (ii) enters any arrangement with its creditors or becomes subject to external administration, or ceases to be able to pay its debts as and when they become due, or ceases to carry on business.
     
  2. DEFAULT
    If Customer is in Default of this Agreement, Agility may pursue any one or more of the following remedies:
  • Take immediate possession any Services or equipment in Customer’s possession;
  • Deny access to Agility facilities (either fixed or mobile);
  • Not provide one or more Services in the event of a declared disaster;
  • Suspend performance of any or all Services contracted for under this Agreement;
  • Pursue any additional or alternative remedies available at law or in equity.
  1. ASSIGNMENT
    This Agreement may not be assigned by either party without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent in connection with the sale of all or substantially all of its business, provided such party provides the other party with prompt written notice of such sale and assignment. No assignment shall relieve Customer of its obligations with respect to payments that become due prior to the assignment. This Agreement shall be binding upon the parties’ respective successors and assigns.
  1. DISPUTES
    Each party will make a good faith effort to resolve any disputes relating to this Agreement prior to commencing legal action. These efforts may include an offer to arrange for executive-level discussions or an offer to submit the dispute to non-binding mediation. This Agreement shall be governed in all respects by the laws of the State of Delaware. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The seat or place of arbitration shall be Denver, Colorado. The award rendered by the arbitrator shall be final, non-reviewable and non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration, or in default thereof appointed by the AAA in accordance with the Commercial Rules. No action, regardless of form, arising out of transactions under this Agreement may be brought by either party more than one (1) year after the cause of action has occurred. This limitation shall not apply to collection of any accrued amounts owed by Customer to Agility.
     
  2. TRADEMARKS
    Except as expressly permitted in this Agreement, neither party hereto shall use any of the other party’s trademarks, trade names or service marks in any manner, without the prior written consent of the other party. Notwithstanding the foregoing, Customer acknowledges that Agility may use Customer’s name in written and spoken communication with prospective customers of the Services and general customer lists.
  1. ENTIRE AGREEMENT
    The Agreement constitutes the entire and integrated agreement, including any addendums that may be made to these terms, between Agility and Customer with respect to the subject matter herein. Use of thePreparis Recovery, Preparis Portal, and Preparis IQ and any Services requiring access to the Agility website are also subject to the standard “Agility Recovery Solutions, Inc. Terms of Use” found at i) https://agilitylive.wpengine.com/terms-of-use/ or any successor URL thereto or ii) notified within the Services. The Agreement may not be modified except by a written document signed by authorized representatives of both parties. All terms and conditions set forth in any Customer purchase order or other document which conflict with or add to the terms of the Agreement shall not be binding on Agility and are hereby rejected.

Additional Terms and Conditions for ReadyOffice Services:

  1. USE
    Agility has partnered with Regus Enterprises to provide Agility’s ReadyOffice Customers with use of Regus Business Centers. Use of the Regus Business Centers is subject to a fair use policy that may vary by location. Neither Regus nor Agility give any warranty or guarantee as to the proximity of the relevant participating Regus Business Center to your covered location(s).
     
  2. COVERAGE
    Coverage for the geographic regions listed in the Agreement cannot be transferred or assigned.
     
  3. SECURITY
    For security reasons, Customer personnel at a Regus Business Center may be required to present personal and/or business identification.
     
  4. ADDITIONAL COSTS
    ReadyOffice service fees and daily fees do not include the following:
  • Video conference services
    • International phone calls
    • Conference rooms
    • VLAN, VPN, IP address or other IT services/configuration
    • Installation of IT or hardware
    • Clerical services
    • Third-party parking fees
  • Off-hours HVAC usage
    • Dedicated bandwidth
  • Additional setup, services, or equipment in connection with Customer testing
    • Additional phone call handling service/configuration not described in the Agreement
    • Additional equipment or software not listed in the Agreement
    • Other optional services/consumables not included in the Agreement
  1. SERVICE LEVELS
    ReadyOffice Services will be available within twenty-four (24) business hours of declaring of a disaster with Agility. Notwithstanding the foregoing, in the event a declaration occurs that requires a recovery during the weekend or holiday, Agility shall not liable for a failure to comply with such timeline, but will use commercially reasonable efforts to provide Customer with ReadyOffice Services as soon as practicable.
     
  2. TESTING
    Customer will provide Agility with no less than forty-five (45) days’ notice in the event they wish to utilize a testing option described as part of a subscription to ReadyOffice Services. Each annual test shall include either i) 10% of the total PCs contracted for or ii) 5 PCs (whichever is less), at no additional cost. PCs requested above this amount at the time of testing will incur additional rental fees plus shipping and handling expenses.

Additional Terms and Conditions for PC Imaging Services:

  1. CONFIGURATION
    Agility’s PC image service includes one (1) initial image along with one (1) update during the first year of the Agreement. Customer may update their PC image up to two (2) times per annum thereafter. Agility’s PC image service is available only for Intel-based computers using either a 32- or 64-bit version of the Windows 7, 8, or 10 operating systems made from either recovery disks or a “System Center Configuration Manager.” The PC Imaging Service can only be used with customer’s own volume licensing program. Images may not exceed thirty-five (35) gigabytes when compressed.
     
  2. VALIDATION
    Agility will validate all initial image(s) and refreshes by rebooting the computer to a Windows logon prompt or home screen unless other validation methods are mutually agreed upon and documented in the Agreement. Agility shall bear no responsibility for functionality beyond the validation described in this section or an amendment hereto. In the event Customer wishes to validate their own image beyond the login prompt, Agility will use commercially reasonable efforts to facilitate a remote keyboard/video/mouse connection over IP solely for validation purposes.
     
  3. SHIPPING
    At Customer’s expense, Customer may have up to five (5) computers shipped upon request for their own validation of the imaging process. Computers may be kept by Customer for up to five (5) business days at no additional expense, after which a usage fee of $10.00 per day per unit will apply.
     
  4. LICENSES
    Customer hereby grants to Agility for the duration of these terms a non-transferable, fully paid up and royalty-free license to use the Customer supplied images on Agility technology for either testing or disaster declaration usage. Customer will be solely responsible for all software license compliance requirements in connection with the Services. Agility hereby grants to Customer for the duration of these terms a non-transferable, fully paid up and royalty-free license to use the image utility software for the purposes of preparing a universal deployable master image(s) for use with the Services.

Additional Terms and Conditions for Business Recovery Center (“BRC”) Services

  1. SERVICES

A predetermined number of seats and specified equipment will be made available as described in the Agreement. Subject to the Agreement, the timeframe for Agility to make the BRC available to Customer shall begin when Agility accepts the disaster declaration from Customer and shall be deemed complete when Agility grants Customer access to the BRC.

  1. USAGE

In connection with a declaration or test, Customer agrees to pay (i) a minimum daily usage fee for each activation of the BRC Service and (ii) a daily utilization fee for each day in excess of the minimum number of days that the BRC service is used by Customer, as notified by Agility at the time of test or declaration.

  1. REPLACEMENT/REPAIR

In the event of any failure of any item that is a part of the BRC, Customer shall notify Agility. Upon receipt of such notification, Agility shall, in its sole reasonable judgment, determine whether to attempt repair of the device on-site or to ship a replacement for the defective item. Customer agrees that it must notify Agility before taking any remedial action or returning any item to Agility. Agility shall be responsible for all shipping charges. In the event that the defective BRC item requires repair or recalibration as a result of an accident caused by Customer or Customer’s unauthorized tampering or repair, misuse, or abuse of such item, Customer shall bear the entire cost of repair or replacement thereof, including any shipping costs.

  1. ACCESS

Customer may access the BRC site described in the authorized quotation for testing purposes Monday through Friday during normal business hours (currently, 8:00 AM – 5:00 PM local time), excluding Agility-recognized holidays. Customer will be charged $150.00/hour for access to the BRC site outside of normal business hours and on Agility-recognized holidays.

Customer shall be responsible for any and all actions of Customer representatives and any Customer-escorted person at the BRC site. Customer acknowledges and agrees that no un-escorted persons may enter the BRC site under any circumstances.

  1. CUSTOMER RESPONSIBILITIES

Customer is responsible for the following:

  • The development, testing, and all procedures to be adopted in the event of a declared disaster,
  • The security and protection of the BRC and equipment contained therein during a declared disaster,
  • Providing Agility staff adequate accommodations to perform its obligations under this agreement, including maintenance of the BRC and equipment therein,
  • Ensuring the BRC is not connected with any Customer-supplied items or hardware without prior Agility consent,
  • Ensuring there is no modification of the BRC during occupancy, and
  • The administration of all systems including the loading of all Customer files and operational procedures.

Additional Terms and Conditions for Professional Services

  1. WORKING PRACTICE

Customer will designate a representative to be the project sponsor for the Services. This representative will be the focal point for all communications relative to the Services and will have the authority to act on Customer’s behalf in matters regarding Agility’s provision of such Services. Customer will provide adequate working space at Customer’s site for Agility to work if on site. Customer’s employees will be made reasonably available to Agility for planned meetings, to answer questions, and to provide information concerning the project (existing plans, processes, procedures, recovery strategy, etc.) in a timely fashion. Customer will ensure participation of key personnel in meetings.

  1. PROJECT ASSUMPTIONS

All work will be performed during normal business hours, Monday through Friday, except applicable holidays. Agility shall not have responsibility for any product that is not provided by nor any task that is not performed by Agility during the course of the engagement. Failure of Customer to provide accurate information regarding processes, recovery tasks, or business requirements may add time and cost to the project. Agility is not responsible for delays, errors, or omissions caused or incurred by other parties.

  1. INDEPENDENT CONTRACTOR

The relationship created under this Agreement between Agility and Customer is that of independent contractors and nothing contained in this contract or the performance of any of the services hereunder shall be construed as creating an employee or partnership relationship. Neither Agility nor any of its employees, agents, subcontractors, or anyone working for or on behalf of Agility are an employee of Customer and are not entitled to the provision by Customer of any employee benefits. Customer shall not be responsible for payment of, and Agility shall not make a claim against Customer for worker’s compensation, disability benefits, or unemployment insurance. Agility shall, at its own expense, comply with all applicable federal, state and local laws, regulations and codes relating to terms and conditions of employment required to be fulfilled by employers or independent contractors.

TERMS UPDATED JANUARY 13, 2020