Online Data Backup Services Agreement
This Online Data Backup Services Agreement is for use by a business (“Service Provider”) providing online data backup services to small or large customers (“Clients”) enabling Clients to outsource their backup of any or all data. The benefit for the Client is that it does not have to incur the cost of purchase of off-site facilities of its own but instead receives a backup storage service in return for a regular fixed fee.
The definition of “Data Protection Legislation” in this document has been updated with reference to the UK GDPR.
It should only be used where the Client is a business (i.e. not a consumer) which is to purchase the service for the purposes of its business.
The agreement provides for data backup and retrieval of backed up data to be carried out over the internet, as opposed to transporting physical media containing the backup data to an off-site location.
This template is written in favour of the Service Provider. It can be adapted to suit the type and scale of the Service Provider’s particular offering, ranging from backup and storage of a limited quantity of data using only the Service Provider’s relatively modest IT facilities to a more sophisticated operation where the Service Provider uses pooled IT facilities of a (private, public, community or hybrid) cloud environment to serve a large number of clients with greater storage requirements.
Under this template the Client pays a fixed fee for each quarter/year or other period (rather than a fee for each backup or retrieval). The amount of the fixed fee and the frequency of payment are to be inserted where marked. The fee entitles the Client to backup any types of data when required (either manually or automatically on a regular scheduled basis), and to retrieve it whenever needed.
Backup and retrieval are permitted subject to any stated time/day limitations (to be inserted where marked by the Service Provider at Annex 1 of the Specification), and whatever the parties agree is to be the limit on storage space (to be inserted in Schedule 1 where marked). The template includes provision for the Service Provider to pay service credits when due to its default the Client is not able to use the service.
The backup and retrieval operations are carried out by the Client using the Service Provider’s software on the Client’s own computers. The software is provided by the Service Provider under licence from the Service Provider or any third party owner of the software. The template provides an option to grant the licence either on the fairly generic terms set out in Schedule 2 or instead on terms set out in a separate document. This enables the Service Provider to opt for other terms which he prefers or which he already uses in his business, or, if applicable, which he is required to use by a third party owner of the software.
There are a number of other additions and deletions which the Service Provider will need to make when completing the template. These are all marked, and they include the number of devices on which the client is allowed to install the software, percentage of the time in each month that the backup service is available, the monetary amount of service credits to be allowed by the Service Provider for certain cases of non-availability, and the monthly and annual total limits on such service credits.
Use of the Online Data Backup Services Agreement by a Client can form part of a Client’s implementation of disaster recovery measures. However, a Service Provider is not responsible under this Agreement to provide any alternative IT facilities for use in the event of a disaster affecting the Client’s business operations. If a Service Provider wishes to provide such outsourced disaster recovery IT services to Clients instead or as well as data backup services, the Service Provider can use one of the accompanying forms of IT Disaster Recovery Services Agreement. In the event of a disaster, the Client will then be able to use the up to date backed up data and process it on the Service Provider’s equipment.
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