1. Provision of Service.
1.1 All Covered agrees to provide to Customer the Vendor Service, consisting of off-site automated data protection, backup, and recovery services in connection with Customer’s use of the Data Protection Device and Axcient Software. All Covered will provide online access to the Customer’s backup data for restoration and recovery purposes on a continuous basis. .
1.2 All Covered agrees to hold confidential all of Customer’s data in its possession exercising the same degree of care that a company utilizing industry accepted business practices would exercise with similar data of its own. All Covered will implement reasonable security and environmental precautions to promote an appropriate level of system availability and data protection and recovery.
2. Provision of Data Protection Device.
2.1 All Covered grants to Customer a non-exclusive, non-transferable license to use the Axcient Software as installed on the Data Protection Device and solely for Customer’s internal business purposes and in accordance with the Agreement.
2.2 Customer shall not, and shall not have others, modify, customize, reverse engineer, reverse assemble or reverse compile the Data Protection Device or Axcient Software or any part thereof. In the event that Customer believes that the Data Protection Device or Axcient Software is not functioning according to standard written specifications, Customer shall contact Vendor immediately and inform them of the problem.
2.3 Customer acknowledges and agrees that it is acquiring only the right to use the Data Protection Device and the Axcient Software during the term of the Agreement. Vendor shall retain all rights of ownership of the Data Protection Device and the Axcient Software, all copyrights and other intellectual property rights vested in the Data Protection Device and Axcient Software, and all modifications to the Data Protection Device and Axcient Software (including derivative works), and changes to the Data Protection Device and Axcient Software made by Vendor under the Agreement. In no event shall title to all or any part of the Data Protection Device and Axcient Software pass to Customer. Customer agrees that, as between the parties, the Data Protection Device and Axcient Software (in whole or part) shall remain the exclusive property of Axcient and may not be copied or used except as expressly authorized by this Agreement. Any rights not expressly granted to the Customer under the Agreement are retained by Axcient. Customer agrees to reimburse Vendor for any damages to Data Protection Device beyond that customarily experienced from normal usage.
3. Customer Obligations.
3.1 Customer will perform regular backups using the Axcient Software which is embedded in the Data Protection Device to hardware that AXCIENT owns and maintains at one of Axcient’s data centers. Customer acknowledges that AXCIENT’s provision of the Axcient Service does not include the requirement or option to purchase the Data Protection Device or any other hardware utilized in connection with the service, during or after the termination of the Agreement. Customer will report any errors in executing such backups promptly by fax or e-mail to AXCIENT. Customer will arrange for and maintain communication services used to connect to AXCIENT’s Data Center. Customer is responsible for any communication costs associated with the connection between Customer’s site and AXCIENT’s Data Center. Customer shall implement reasonable security and environmental precautions to ensure a high level of system availability and data protection and recovery.
3.2 Customer covenants and agrees that Customer shall not place any data in AXCIENT’s off site storage that (i) infringes the intellectual property rights or privacy rights of any third party, (ii) violates any law, statute, ordinance or regulation, (iii) is defamatory, libelous, unlawfully threatening or harassing, (iv) is obscene, or contains any viruses, Trojan horses, worms, time bombs, cancel bots or other programming routines that are intended to or have the effect of damaging, detrimentally interfering with, surreptitiously intercepting or expropriating any system, data or personal information. Customer shall defend, indemnify and hold AXCIENT harmless against any third party claim, suit or proceeding alleging any breach of the covenants contained in this Section.