Hosted Disaster Recovery (HDR) Agreement
This Hosted Disaster Recovery (“HDR”) Agreement is entered into by and between Computer Guidance Corporation (“CGC”), an Arizona corporation, and CUSTOMER, and is effective as of the date of the execution of related Exhibit A by CGC and CUSTOMER.
- Disaster is any unplanned interruption of information processing at a Specified Location, due to causes beyond Customer’s control, which significantly impairs the Customer’s ability to perform critical information processing activities.
- Network Services are the additional Network technical services Customer may request, for additional charge, that provide networking capability for the Configuration.
- Recovery Center is the CGC facility where CGC provides Test Time, Recovery Services, as CGC describes in the Amendment. At its discretion, CGC may provide Recovery Services and Cold-Site Services in a location other than the Primary Recovery Center.
II. CGC's Responsibilities
- HDR Services. CGC will provide HDR services which include a data replication feature that provides a solution for both partial and complete site failures. HDR protects against data loss by replicating data changes from a source database, called the primary, to a target database, called the standby. The primary source is identified in Exhibit A.
- One Annual Test. CGC provides testing time to allow Customer to 1) test Customer Hosted Disaster Recovery plan and procedures and 2) to verify the operation of Customer critical applications on the Configuration. CGC will make the Configuration available to Customer at the Primary Recovery Center, without additional charge, for the annual test. Customer may not use test time to do production work. Scheduling of test will be as CGC mutually agrees.
- Recovery Services. When Customer declares a Disaster, CGC will take action to initiate Customer’s use of the target standby database. CGC will use commercially reasonable efforts to provide HDR services as soon as the Customer is ready to receive them.CGC will provide access to the target standby database for a maximum of six consecutive weeks following a Disaster. For each week the Recovery Center is used beyond two weeks, the customer will incur an additional weekly fee of 20% of the current annual charge.
III. Customer Responsibilities.
- notify CGC that Customer is declaring a Disaster;
- supply all personnel and ‘user’ Programs necessary for Testing and Recovery Services;
- refresh CGC with any ‘user’ Programs periodically to ensure CGC has the latest version of any/all ‘user’ based Programs;
- have the latest supported release or prior supported release of eCMS software installed. eCMS must be on any of the last two service packs;
- have the current version or one prior version of the operating system and related PTF’s;
- have the latest or prior version of Business Objects or Cognos that is supported by Computer Guidance;
- be on same version of iCluster SMB as the Computer Guidance CBU. Customer must be current on iCluster SMB maintenance;
- furnish supplies, materials, and storage media which are not included as part of HDR;
- be solely responsible for the results obtained from the use of the Configuration and Network Services, and the Programs used with them which are provided by Customer;
- be solely responsible for the security of data during transmission and for correcting transmission errors and data corruption problems;
- follow procedures and instructions CGC provides Customer for using the Recovery Center, including those for safety and security;
- be responsible for providing and setting up all PC/laptops and printers. No PC’s / laptops or printers are provided by CGC.
IV. Term. The effective date shall be immediately following the date both parties have signed this agreement and CGC received all appropriate funds as payment for the service.
Renewal. The Agreement herein shall automatically renew for additional one-year terms (a “Renewal Term”) unless either party provides written notice to the other not less than 30 days prior to the end of the Initial Term or any subsequent Renewal Term of its intent not to renew this Agreement (the Initial Term and any Renewal Terms, collectively, the “Term”). The parties agree that this auto-renewal provision is a negotiated provision of this Agreement, constitutes part of the consideration of the Agreement, and is reasonable. Upon termination of this Agreement CGC shall have no obligation to provide any further HDR services to CUSTOMER.
- V. Charges. Customer hereby agrees to pay the sum of the “Total Fees” as specified within the Hosted Disaster Recovery (HDR): Exhibit A and subsequent “Annual Fees” upon renewal. CUSTOMER hereby agrees to pay the fees as specified in Exhibit A of this Agreement. Except as otherwise noted, (i) fees are quoted and payable in United States dollars, (ii) fees are based on services purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are non-refundable. At the end of each year of the Term, CUSTOMER agrees that the Annual Fee will increase for the upcoming year of the Term by an amount equal to any increase in the Consumer Price Index-United States City Average-All Urban Consumers-All items published by the U.S. Dept. of Labor Bureau of Labor Statistics (the CPI) as of such date over the CPI in effect one year prior to such date. If the CPI is discontinued or revised during the term of this Agreement, such other government index or computation with which it is replaced shall b e utilized to obtain substantially the same results as would be obtained if the index had not been so discontinued or revised.
Additional Charges. Customer agrees to pay a Test Time charge of $2,500.00 for each additional HDR test Customer requests beyond the one HDR test included annually.
Prices and Payment. CGC will invoice all the “Total Fee for Term of Service” charges in advance of any services provided. CGC will invoice Usage and other charges following the period, which Customer incurs them. Customer agrees to pay amounts due, including any late payment fees, as CGC may specify in the invoice. If any authority imposes a duty, tax, levy, or fee, excluding those based on CGC’s net income, on any transaction under this Amendment, then Customer agrees to pay that amount as specified in the invoice or supply exemption documentation.
VI. Confidential Information. Confidential Information shall mean all confidential information disclosed by a party (“Disclosing Party”), whether orally or in writing, that is designated as confidential or that reasonable should be understood to be confidential given the nature of the information and the circumstances of disclosure. CUSTOMER’S confidential data shall include your Data. CGC’s confidential Information shall include the Services; and Confidential Information of each party shall include the terms of this Agreement and all Amendments and accompanying Exhibits, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than CUSTOMER’S Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
VII. Limitation of Liability. Customer’s exclusive remedy and CGC’s entire liability for HDR are described in this section.If, after exercising commercially reasonable efforts, CGC is unable to provide HDR services as described in the section “CGC’s Responsibilities” and Customer elects to not accept such services when CGC can provide them, CGC will pay Customer an amount equal to the “Annual Fee” paid for HDR for the preceding 12 months of the Term. This is the Customer’s exclusive remedy for failure to provide Customer such Services.In any other instance, regardless of the basis on which Customer is entitled to claim damages from CGC (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), CGC is liable only for the amount of any other actual direct damages or loss, up to amount equal to the “Annual Fee” paid for HDR for the preceding 12 months of the Term. This limit also applies to any of CGC’s subcontractors and Program/Technical developers. It is the maximum for which CGC and CGC’s subcontractors and Program developers are collectively responsible.In no event will either party be liable for incidental, special, indirect or consequential damages (including lost profits) suffered by the other party, even if a party has previously been advised of the possibility of such damages.
- third-party claims against Customer for losses or damages (other than those under the first two items in section 7);
- loss of, or damage to, Customer records or data;
- special, incidental, or indirect damages or for any economic consequential damages (including lost profits or savings), even if CGC is informed of their possibility.
Items for Which CGC are Not Liable. Under no circumstances are CGC, CGC’s subcontractors, or CGC’s employees liable for any of the following:
VIII. Warranty. CGC warrants that CGC will perform HDR services in a workmanlike manner and according to its current description contained in this Agreement.CGC does not warrant uninterrupted or error-free operation of a Product or Service.
IX. Other Terms. CGC will follow reasonable security practices and procedures to protect Customer’s physical assets while they are in CGC’s Recovery Center. Such protection includes providing security at the Recovery Center that restricts access only to those persons authorized by either Customer or CGC. This security will be in place 24 hours a day, seven days a week.Customer and CGC will allow each other reasonable opportunity to comply before it claims that the other has not met its obligations. Neither Customer nor CGC is responsible for failure to fulfill any obligations due to causes beyond its control.
Changes to the Amendment Terms. In order to maintain flexibility in CGC’s Services, CGC may change the terms of this Agreement by giving Customer ninety (90) days written notice. However, these changes are not retroactive. They apply, as of the effective date CGC specifies in the notice.
General Provisions. (a) No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen, or in the area of non-payment, more than two years from the date of the last payment. (b) This Agreement will be governed by the laws of the State of Arizona.CUSTOMER AND CGC EACH ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER AND CGC AGREE THAT THIS AGREEMENT, INCLUDING ALL AMENDMENTS AND EXHIBITS, IS THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.