MANAGED BACKUP TERMS OF SERVICE
This Managed Backup Terms of Service Agreement (Backup Agreement) is between Everleap, owned and operated by Host Collective, Inc.,
(herein referred as Everleap, we, us, our) and the individual or entity to whom Everleap provides backup services (Customer, you, your).
This Backup Agreement consists of this Managed Backup Terms of Service Agreement,
the standard Everleap Terms of Service (TOS),
the Acceptable Use Policy (AUP),
the Service Level Agreement (SLA)
and any other Agreements which reference this Backup Agreement. Under the European Union General Data Protection Regulation (GDPR),
our Data Processing Agreement is also part of the Agreement.
The Incorporated Agreements are incorporated into this Backup Agreement by reference. You are responsible for including these provisions
in your agreements with your customers and users (End Users), and for all acts of your End Users under this Backup Agreement.
The Effective Date of this Backup Agreement is the date when the Customer registers with Everleap and creates an Everleap Control Panel shell.
Customer consents to be bound by this Backup Agreement by agreeing to subscribe to the Managed Backup Services via email or phone.
Customer consents to any revisions to this Backup Agreement or Incorporated Agreements by continuing to use the Managed Backup Services.
1 - Definitions
Agent: Agent refers to a piece of software that is installed on the Customer Device to facilitate the transfer of Customer Data to the Backup Service.
Backup Service: Backup Service refers to the end-to-end delivery and management of Customer Data backup and restore services, including infrastructure, systems, configurations, software, and consulting.
Cloud Storage: Cloud Storage refers to the remote data storage environment that resides outside of the Customer’s on-prem/internal infrastructure, where Customer Data is securely transferred and securely stored.
Customer Data: Customer Data refers to any Customer content that resides on Customer Devices which will be transferred to the Backup Service.
Customer Devices: Customer Devices refer to any server, computer, desktop, or mobile form factor that reside within the Customer’s infrastructure/network and contains Customer Data which will be transferred to the Backup Service.
Quote: Quote refers to Everleap’s communication to Customer regarding fee structure of Backup Services. The Quote may be communicated to Customer via email, phone, or a Quote document.
2 - Backup Services
Everleap provides end-to-end backup and restore services for Customer Data. Certain aspects of the Backup Services may be provided by third parties. If it is necessary to identify these aspects separately in this Backup Agreement, they are referred to as "Third-Party Services."
The following provisions govern certain aspects of the Backup Services
2.1 - Agent Installation
Everleap will acquire the Agents, install, and configure the Agents on the Customer Devices that are to use the Backup Service. Customer is responsible for ensuring that Everleap can access Customer Devices to install Agents in a timely manner.
The Agents are Device environment specific (e.g., operating system). While most devices should be supported, Everleap reserves the right to decline offering Backup Services to Devices that do not meet minimum requirements for the Agents.
If requested, Everleap can provide Customer with the Agents and installation instructions. Everleap will not be responsible for any failure due to improper installation.
Everleap will not be responsible for any failure related to intentional or unintentional modifications to the Agent made by the Customer.
2.2 - Cloud Backup Environment
Customer acknowledges that the Cloud Backup Storage environment will be different than and does not depend on the Customer Device environment.
2.3 - Internet Bandwidth
The Backup Service will utilize Internet connectivity to transfer Customer Data to the Backup Cloud Storage. Customer is responsible for supplying sufficient Internet bandwidth to support the Backup Services.
Customer acknowledges that the Backup Service can be affected by Internet connectivity issues between the Customer Devices and the Cloud Backup Environment, and these issues are out of the control of all Parties.
The Backup Service fees do not include costs associated with network connections.
2.4 - Retention
The Backup Service retention period is customized to the business requirements of the Customer.
2.5 - Frequency
The default frequency of backups is once per day. It may be possible to increase the daily frequency of backups. However, increasing the daily backup frequency could involve additional costs.
2.6 - Restored Data
Customer may request data from their Customer Data on the Backup Cloud Storage at any time. Everleap will make best efforts to retrieve the requested data in a timely manner.
Customer understands that the restored data may be incomplete and restoring data to Customer Devices may not recreate the same configuration as existed prior to restoration. In addition, depending on the Customer Device environment, backup restoration may involve downtime of the Device.
2.7 - On-Demand Backups
While the Backup Service goal is to set up automated scheduled backups of Customer Data on Customer Devices, upon request, Everleap can perform on-demand backups. Such on-demand backups are subject to Everleap’s resource constraints; therefore, we cannot make any representations that on-demand backups can be done immediately when the Customer makes a request.
2.8 - Backup Seeding
In some circumstances it may be faster to seed the Backup Service with a Customer Data image on a storage media. If seeding is necessary, the Customer will be responsible for all costs related to shipping of storage media and will be responsible for transferring the Customer Data to the storage media. While every effort will be made to seed the Backup Service with the Customer Data on the storage media, Everleap makes no representations for the viability or success of the seeding process.
2.9 - Encryption
Customer Data will be encrypted on transit to Backup Services and will be encrypted at rest on the Backup Cloud Storage environment.
2.10 - Additional Backup Services
Everleap may provide Additional Backup Services whose pricing and technical details are not yet published on the Everleap website. For such Additional Backup Services, Everleap will discuss the technical aspects of the Backup Service with the Customer and provide a Quote with outlined costs for Customer approval.
3 - Backup Service Delivery
3.1 - Device Connectivity
It is the customer’s responsibility to ensure that all Customer Devices can connect to the Backup Service.
3.2 - Backup Service Maintenance
To provide Backup Service, maintenance is required from time to time, which may involve updates to the Agents. Everleap will provide Agent updates and maintenance at Everleap’s discretion. Everleap will send Customer a notification of upcoming maintenance work and provide the date and timeframe and as much detail as possible for Backup Service impact. With advanced notice, such maintenance will be considered as a “Scheduled Maintenance”.
During maintenance, Customer will provide Everleap with access to Devices or provide a technical contact that Everleap will assist to conduct maintenance work on the Agents.
Everleap also reserves the right to perform emergency maintenance which is not scheduled. We will make every reasonable effort to notify the Customer as soon as possible under the circumstances.
3.3 - Remote Work
Everleap’s work related to Backup Services will be conducted remotely.
3.4 - Customer Monitoring
Customer will be given online access to a Backup Service Portal where they can view a dashboard with reports monitoring the Backup Service.
3.5 - Backup Service Termination
Everleap is not responsible for retaining any Customer Data and does not guarantee Backup Service availability on and past the termination date. Customer Data may be deleted and unrecoverable on the Backup Service termination date. If needed, it is the Customer’s responsibility to request, obtain, and verify any important Customer Data prior to the termination date.
3.6 - Backup Service Conditions
Customer acknowledges that there may be conditions outside of Everleap’s control that my adversely impact the Backup Services, which may include but is not limited to:
Failure of Customer Device (e.g., hardware, software, power)
Network connectivity issues between Customer Device and Backup Services
Software, tasks, jobs, locked files on Customer Device that interferes with Backup Services.
Intentional or unintentional modifications to the Agents.
3.7 - Restoration Services
Upon Customer request, Everleap will locate specified files/data from the Backup Service and deliver them to the Customer. The delivery of Customer Data is subject to Everleap’s resource constraints and time to locate Customer Data; therefore, we cannot make any representations that Customer Data can be delivered immediately after the Customer makes a Restoration request. Everleap will use our best efforts to recover the requested Customer Data as quickly as possible.
Customer acknowledges that Customer Data that has expired or exceeds the Customer specified retention period will not be recoverable.
4 - Backup Service Support
4.1 - Customer Contacts
Everleap will consider any Customer Contact that has access to the Everleap Control Panel (https://cp.everleap.com)
to be authorized to make inquiries and requests related to the Backup Services.
4.2 - Helpdesk
For Technical Support or Billing-related matters, Customer must contact Everleap using the Everleap Helpdesk l
ocated at https://support.everleap.com.
Service tickets can be open by logging into the Helpdesk using the same credentials used for the Everleap control panel.
All communication will be conducted in English.
4.3 - Notifications
For any Backup Service Maintenance communications, Backup Service issue, Backup Service billing communications, we will contact the Customer Administrative contact on record with Everleap.
4.4 - Cooperation
Customer is required to cooperate with Everleap’s efforts to maintain security. Customer must report any security deficiencies, viruses,
and other network issues to Everleap.
4.5 - Breach
If, in our sole discretion, we determine that our Backup Services have been compromised by a security breach (Breach), we shall provide you with notice of the Breach within 24 hours after such determination (Breach Notification). It may be necessary to suspend the Backup Services to cure, mitigate and investigate the Breach. We shall not be liable for any loss Customer may incur as a result of such suspension. The information contained in the Breach Notification may be of a preliminary and unconfirmed nature, and you rely on it at your own risk. All information you receive in connection with the Breach, including the Breach Notification, is confidential. We both agree to cooperate in investigating the Breach.
5 - Ownership
Customer is required to provide the contact information which is displayed in Everleap's control panel (Customer Information). Customer warrants that the Customer Information is accurate and up-to-date. Everleap will use the Customer Information to determine ownership of the Backup Services. If there is a dispute concerning ownership of the Backup Services, Everleap may freeze Customer's account until such time as the dispute is resolved by the parties.
If aspects of the Backup Services are administered by Customer on behalf of another person or entity, Customer warrants that it will administer these Backup Services in good faith. Customer further agrees to indemnify Everleap against all losses and liabilities sustained by Everleap should Customer administer the account in ways that are adverse to End Users and result in any claim against Everleap.
6 - Fees
The Fees for a particular Service are set out on the Quote. Fees are guaranteed for the current Term. Should Everleap change the Fees during the Term, such changes will not take effect until the beginning of the next Renewal Term.
6.1 - Promotions
From time to time, Everleap may offer special promotions with regard to the Fees. These promotions are specifically targeted, do not apply to previously ordered Services, and, depending upon their terms, may not apply to all Customers or Services introduced or added by customer in the future.
6.2 - Payment Method
Fees will be charged to the credit card Customer sets out in the Customer Information. Fees are due as set out in the Quote. It is Customer's responsibility to ensure that its credit card is up to date and will not be declined.
6.3 - Payment Default
If Everleap does not receive undisputed Fees when charged (Payment Default), Customer's entire account will be suspended. During the time Customer's account is suspended because of a Payment Default, various features of the Backup Services may not be available.
Everleap is not responsible for any damages caused by an account suspended due to a Payment Default. Should Customer fail to cure a Payment Default within 10 days, public access to Backup Services will be suspended. Should Customer fail to cure the Payment Default after 25 consecutive days this Backup Agreement will be terminated, and all Backup Services will be terminated. Customer is responsible for all costs incurred by Everleap in its efforts to collect amounts due. These costs include, but are not limited to, collection fees, reasonable attorney's fees, and interest in the amount of 1.5% per month, or the highest amount Everleap may legally charge.
6.4 - Account Updater Services
Everleap may participate in Account Updater Services supported by your payment card provider. As part of this Backup Service, your payment card provider may notify Everleap of any changes to your payment card number or expiration date. In accordance with the payment card provider requirements, if we are notified of an update, Everleap will automatically update your payment information on your behalf. Everleap makes no guarantees that we will request or receive any updated payment card information. You acknowledge and agree that it is your sole responsibility to maintain current and valid account and payment information with Everleap.
6.5 - Disputes
Any disputes about Fees due must be presented in writing to Everleap at firstname.lastname@example.org prior to the date the Fee is due (Bill Dispute Notice). The Bill Dispute Notice must contain sufficient detail to allow Everleap to identify the basis and reasons for the dispute. If the Bill Dispute Notice is received by Everleap after the date a Fee is due, Customer has waived the right to dispute the Fee. Everleap will use reasonable efforts to investigate the dispute within 30 days of its actual receipt of the Bill Dispute Notice. Everleap will respond to the Bill Dispute Notice in writing. If Everleap finds that a particular Fee was charged in error, Everleap will credit Customer's account within 30 days. If Everleap disagrees with the Bill Dispute Notice, the parties agree that for a period of 60 days, they will work in good faith to resolve the dispute. If the parties fail to agree to resolve the dispute, the parties are entitled to exercise their rights under this Backup Agreement or at law. During the time following Everleap's actual receipt of a Bill Dispute Notice, all undisputed Fees for Backup Services must be paid when due. Customer agrees to waive its right to withhold Fees during a bill dispute, and/or to set off other Fees due against those in dispute.
7 - Term
The Term for a particular Service is set out on the Quote. Upon expiration of the Term, the Backup Service will renew for the period of the prior Term (Renewal Term), and subsequently renew at the end of each Renewal Term unless terminated as provided in this Backup Agreement.
8 - Termination
Everleap may terminate this Backup Agreement, or an aspect of the Backup Services covered by this Backup Agreement, by providing the Customer with written notice of termination. Customer may terminate this Backup Agreement, or an aspect of the Backup Services by this Backup Agreement, by logging into their Control Panel and/or using the Help Center to submit cancellation request details to the Everleap Billing Department. This notice must be delivered at least 7 days prior to the expiration of the Term.
Either Customer or Everleap may terminate this Backup Agreement, or an aspect of the Backup Services covered by this Backup Agreement, by providing the other with written notice of material breach. The party against whom material breach is alleged shall have 10 calendar days to correct the material breach. However, if the material breach is incapable of cure that aspect of the Backup Services affected by the material breach, may be terminated immediately. Our decision to stop offering any Third-Party Services shall not be considered a material breach.
Everleap may suspend or terminate this Backup Agreement, or particular aspects of the Backup Services covered by this Backup Agreement, at Everleap's sole and exclusive discretion, if:
Everleap receives a complaint that Customer has violated this Backup Agreement, or any Incorporated Agreements, and Customer has not complied with Everleap's recommended course of action;
A Third-Party ceases making aspects of the Backup Services available to Everleap, or continuing to provide the Backup Services becomes commercially unreasonable.
9 - Warranties
9.1 - Mutual Warranties
Customer and Everleap each agree that they have the requisite authority to enter into this Backup Agreement, and that neither is prohibited from entering into it.
9.2 - Everleap Warranties
Everleap warrants that it will use reasonable efforts to deliver the Backup Services to Customer upon the Effective Date.
9.3 - Customer Warranties
Customer represents and warrant to Everleap that: (i) Customer has the experience and knowledge necessary to use the Backup Services; (ii) Customer understands and appreciates the risks inherent to Customer and Customer's business that come from accessing the Internet; (iii) Customer will provide Everleap with Device information such that Everleap can provide the Backup Services without extra effort on Everleap's part; (iv) Customer has sufficient knowledge about administering and operating Customer Devices which will use the Backup Services; (v) in entering into this Backup Agreement, and performing the obligations set out in it, Customer will not violate any applicable laws and regulations; (vi) Customer owns, or has a license to use, all Data transmitted using the Backup Services, or placed on Cloud Storage; and (vii) Customer will pass through the terms of Everleap's Acceptable Use Policy to End Users, and will be bound to End Users by a contract that is no less restrictive than this Backup Agreement.
10 - Disclaimers
THE BACKUP SERVICE IS PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS, AND WITH ALL FAULTS. OTHER THAN AS EXPRESSLY SET OUT IN PARAGRAPH 9.2, EVERLEAP HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES, EITHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, WARRANTIES OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND TITLE. EVERLEAP DOES NOT WARRANT THAT THE BACKUP SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ADVICE GIVEN IN A COMMUNITY FORUM IS RELIABLE, ACCURATE OR WILL NOT DAMAGE CUSTOMER. EVERLEAP IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER, OR STORED BY CUSTOMER OR AN END USER. EVERLEAP SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING BACKUP SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE BACKUP SERVICES APPEAR TO BE PROVIDED BY EVERLEAP. NO WARRANTIES MADE BY THESE THIRD-PARTY ENTITIES TO EVERLEAP SHALL BE PASSED THROUGH TO CUSTOMER, NOR SHALL CUSTOMER CLAIM TO BE A THIRD-PARTY BENEFICIARY OF SUCH WARRANTIES. SOME STATES DO NOT ALLOW EVERLEAP TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO CUSTOMER, CUSTOMER'S WARRANTY IS LIMITED TO 90 DAYS FROM THE EFFECTIVE DATE FOR THAT INDIVIDUAL ASPECT OF THE PARTICULAR BACKUP SERVICE.
THIS WARRANTY DISCLAIMER EXTENDS TO ANY ORAL OR WRITTEN INFORMATION CUSTOMER MAY HAVE RECEIVED FROM EVERLEAP OR ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS, OR AFFILIATES. CUSTOMER MAY NOT RELY ON SUCH INFORMATION.
11 - Limitation of Liability
IN NO EVENT WILL EVERLEAP'S LIABILITY HEREUNDER EXCEED THE AGGREGATE FEES ACTUALLY RECEIVED BY EVERLEAP FROM CUSTOMER FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. FOR THE PURPOSES OF THIS PARAGRAPH ONLY, THE TERM "EVERLEAP" SHALL BE INTERPRETED TO INCLUDE EVERLEAP'S EMPLOYEES, AGENTS, OWNERS, DIRECTORS, OFFICERS, AFFILIATES, AND THIRD PARTIES PROVIDING BACKUP SERVICES TO CUSTOMER THROUGH EVERLEAP.
CUSTOMER AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WILL NOT, UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD EVERLEAP OR ITS LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD-PARTY VENDORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY CUSTOMER, ANY OF CUSTOMER'S END USERS, OR ANY OTHER THIRD-PARTY. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, AND APPLY EVEN IF EVERLEAP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; CUSTOMER AGREES THAT IN THOSE JURISDICTIONS, EVERLEAP'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
12 - Indemnification
Everleap shall indemnify and hold Customer harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against Customer so far as it is based on a claim that a Backup Service infringes any issued U.S. patent. This indemnification provision is expressly limited to parts of the Backup Service that are fully owned by Everleap. It does not extend to third-party products or services, including Third Party Services, even if incorporated into the Backup Service. This paragraph will be conditioned on Customer notifying Everleap promptly in writing of the claim and giving Everleap full authority, information, and assistance for the defense and settlement of that claim.
Customer shall have the right to participate in the defense of the claim at Customer's expense. If such claim has occurred, or in Everleap's opinion is likely to occur, Customer agrees to permit Everleap, at its option and expense, either to: (i) procure for Customer the right to continue using the Backup Service; (ii) replace an individual component of the Backup Service with a product or service, regardless of manufacturer, performing the same or similar function as the infringing aspect of the Backup Service, or modify the same so that it becomes non-infringing; or (iii) if neither of the foregoing alternatives is reasonably available, immediately terminate Everleap's obligations (and Customer's rights) under this Backup Agreement with regard to such Backup Service and refund to Customer the price originally paid by Customer to Everleap for the Backup Service, or the Fee actually received by Everleap from Customer for the 3 month period immediately preceding the occurrence of the event on which the indemnification claim is based.
Customer agrees to indemnify, defend and hold harmless Everleap and its parent, subsidiary and affiliated companies, third-party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and, collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) Customer's use of the Backup Services or an End User or visitor's use of the Backup Services through Customer; (ii) any violation by Customer, an End User, or visitor to Customer's site, of any of Everleap's policies; (iii) any breach of any of Customer's representations, warranties or covenants contained in this Backup Agreement; (iv) any acts or omissions by Customer; and/or (v) any posts by Customer in the Community Forum. The terms of this section shall survive any termination of this Backup Agreement.
13 - Intellectual Property
13.1 - Everleap's Intellectual Property
Everleap, or its third-party vendors, retains ownership of all intellectual property rights in the Backup Services. Everleap grants to Customer a non-exclusive, non-transferable, worldwide, royalty-free license to use the intellectual property provided by Everleap solely to access and use the Backup Services. This license terminates on the expiration or termination of this Backup Agreement. Except for the license rights set out herein, this license does not grant any additional rights to Customer. All right, title and interest in Everleap's intellectual property, or that of its third-party vendors, shall remain with Everleap or its licensors. Customer is not permitted to circumvent any devices designed to protect Everleap's, or its licensor's, ownership interests in the intellectual property provided to Customer. In addition, Customer may not reverse engineer this intellectual property.
Any license provided to Customer is provided with "RESTRICTED RIGHTS" applicable to private and public licensees. These rights include, but are not limited to, restrictions on use, duplication, or disclosure by the United States Government as set forth in this Backup Agreement and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
13.2 - Customer's Intellectual Property
Customer grants to Everleap, and, if required, Everleap's third-party vendors, a non-exclusive, non-transferable, worldwide, royalty-free license to use Customer's intellectual property (or that of its third-party vendors and/or End Users) for the limited purpose of providing the Backup Services to Customer. This license terminates upon termination or expiration of this Backup Agreement. Except for the license rights granted herein, this license does not grant any additional rights to Everleap. All right, title and interest in Customer's intellectual property, or that of its third-party vendors, shall remain with Customer or its licensors. Everleap is not permitted to circumvent any code designed to protect Customer's, or its licensor's, ownership interests in the intellectual property provided to Everleap. In addition, Everleap may not reverse engineer this intellectual property.
13.3 - Licenses Customer is Required to Have
Other than as set out in paragraph 13.1 above, Customer is solely responsible for obtaining all licenses and other intellectual property rights necessary to use the Backup Services (Third-Party Licenses). Upon written request, Customer agrees to provide Everleap with reasonable assurances that it has received the Third-Party Licenses, including, but not limited to, written copies of the Third-Party License.
14 - Miscellaneous
14.1 - Notices
Notices will be sent to Customer at the address provided in the Customer Information.
Notices regarding this Backup Agreement and other Everleap policies should be directed to:
Attention: Everleap Legal Notices
417 East Huntington Drive -
Monrovia, CA 91016
14.2 - Force Majeure
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than 10 days from the beginning of the event.
14.3 - Choice of Law, Jurisdiction, Venue and Statute of Limitations
The parties agree that all disputes shall be brought before the U.S. District Court for the District of Los Angeles located in Los Angeles, California (District Court). The parties agree that this court shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Backup Agreement or any other document entered into by the parties. Further, the parties agree that venue shall be proper in the court set out above and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Backup Agreement shall be governed by the substantive law of the State of California, excluding its choice of law rules. The United Nations Convention on Contracts for International Sale of Goods shall not apply. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS BACKUP AGREEMENT.
14.4 - Notice to California Customers
Please be advised that, as may be applicable to you under California law, if Customer is unsatisfied with the way Everleap responds to a complaint regarding the Backup Services, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
14.5 - No Waiver
No waiver of rights under this Backup Agreement, or any Everleap policy, or other agreement between Customer and Everleap, shall constitute a subsequent waiver of this or any other right under this Backup Agreement.
14.6 - Assignment
This Backup Agreement may be assigned by Everleap. It may not be assigned by Customer. This Backup Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties.
14.7 - Severability
In the event that any of the terms of this Backup Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Backup Agreement. All remaining terms of this Backup Agreement shall remain in full force and effect.
14.8 - No Agency
This Backup Agreement does not create any agency, partnership, joint venture, or franchise relationship between the parties. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. The parties are independent contractors.
14.9 - Export Restrictions
You agree to comply with all applicable international and national laws that apply to the Backup Services, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
14.10 - Survival
The provisions of paragraphs 2, 10, 11, 12, 14.1, 14.3, 14.5, 14.6, 14,7, and 14.10 will survive the expiration of this Backup Agreement or its termination for any reason.
Updated: April 14, 2022