1. Definitions and Interpretation
1.1 In these Terms and Conditions (these “Terms”) the following definitions apply:
“Agreement” means the Dakota Cloud Recovery Service Level Agreement in to which these Terms are incorporated delivered to Customer with signed quotation.
"Business Day" means any day other than a Saturday, Sunday, or a Bank Holiday in South Dakota.
"Commencement Date" means the date on which the Service is first made available for use by Customer or would have been available for use but for Customer’s delay or default.
"Confidential Information" means all information not publicly known, used in, or otherwise relating to a party’s business, customers, financial, or other affairs, including, without limitation, information relating to (a) the marketing of goods or services, including, without limitation, existing and future customer names and lists and other details of existing and future customers, (b) future products, business development or planning, commercial relationships and negotiations and (c) the Service.
“Contractual Documents” means these Terms and the Agreement.
“Customer” means the Customer as defined in the Agreement.
"Equipment" means the computer equipment (if any), racking (if any) and associated equipment (if any) used in connection with the provision of the Service and located on Customer’s premises from time to time.
"Installation Charges" means the set up charges for establishing the Service.
“Dakota Cloud” means Dakota Cloud Recovery.
"Monthly Charges" means the Monthly Data Charge
“Proposal Document” means the proposal document issued to Customer in connection with the provision of the Service.
"Service" means the Dakota Cloud service as described in the Proposal Document and the Agreement, and including, without limitation the provision of people, infrastructure resources, support and access to and the use of Dakota Cloud’s licensed software (including, without limitation, the Software), applications, hardware (including without limitation the Equipment), data centre resources and interconnection to other third party networks and any other services provided by Dakota Cloud in connection with the Dakota Cloud service.
"Software" means all and any software installed on the Equipment.
1.2 References to the Agreement include these Terms.
The Contractual Documents constitute the entire agreement and understanding between Dakota Cloud and Customer regarding the provision of the Service and any and all oral or written agreements or understandings existing prior to the date of the Agreement including, without limitation, those specified in the Proposal Document (save to the extent they are expressly incorporated into the Contractual Documents, and the Proposal Document shall not be or be deemed to be incorporated into this Agreement by reason that it is appended to the Contractual Documents) are expressly cancelled. All warranties, conditions, terms and representations, express or implied (whether by law, statute or otherwise) if not expressly incorporated in the Contractual Documents are hereby excluded to the extent permitted by law, save for those representations made fraudulently. Any modifications to the Contractual Documents must be in writing and signed by the parties. These Terms shall supersede, and shall continue to supersede, the terms of any purchase order or other document submitted by Customer.
3. Provision of Equipment and Service
3.1 Dakota Cloud will use all reasonable skill and care in the provision of the Service to Customer subject to the terms of the Contractual Documents.
3.2 Dakota Cloud will use its reasonable endeavors to commence the provision of the Service to Customer within 2 weeks after the date of the Agreement, but Dakota Cloud shall have no liability should there be any delay in the provision of the Service.
3.3 Dakota Cloud may vary the technical specifications of the Equipment, Software and/or Service provided that this does not materially impair the Service.
3.3.1 If, in Dakota Cloud’s sole discretion, Dakota Cloud judges that it is reasonable to do so for the purposes of repair, maintenance or improvement of the Equipment, Software and/or Service or any part thereof, Dakota Cloud reserves the right to suspend provision of the Service or any part thereof for the purpose of carrying out or implementing such repair, maintenance or improvement, provided that in the event of such suspension Dakota Cloud will use its reasonable endeavors to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused.
3.3.2 Dakota Cloud may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body.
3.4 Subject to Customer nominating a suitable representative in accordance with clause 5.11
3.5 Dakota Cloud will provide a customer telephone support service which will be manned 8 am to 5 pm MT Monday - Friday to respond to Customer's problems or inquiries regarding the Service or faults in the Service.
3.6 Dakota Cloud will use its reasonable endeavors to provide support for Customer's inquiries relating to the Service, retrieval of data or faults in the Service in accordance with the Support and Escalation Procedure set out in the Agreement.
4. Minimum Period, Commencement Date and Cancellation
The Agreement shall, subject to clause 7, continue for the contract term specified on signed quotation from the Commencement Date (the “Minimum Period”) and shall continue thereafter unless terminated by either party giving not less than 1 months' notice in writing, such notice to expire at the end of the Minimum Period or at any time thereafter.
5. Customer’s Obligations
5.1 Customer must take reasonable care of the Equipment and must not damage it, tamper with it, move or remove it or attempt to repair it. Customer will be responsible for all damage to or loss of the Equipment and/or the Software on Customer’s premises, other than loss or damage caused by Dakota Cloud’s employees or contractors. Customer must put in place and maintain insurance in respect of the Equipment against loss or damage (including, without limitation, accidental loss or damage) with a reputable insurer for the full replacement value of the Equipment and Customer will, on demand by Dakota Cloud, produce evidence to Dakota Cloud that such insurance is being maintained and is valid.
5.2 On termination of the Agreement, Customer must allow Dakota Cloud and its employees and contractors reasonable access to its premises to remove the Equipment.
5.3 Customer will not remove any sign, label or other marking on the Equipment identifying that Dakota Cloud is the owner thereof. Customer will not acquire any rights of ownership in the Equipment or the Software by virtue of the Contractual Documents and shall not have, by operation of law or otherwise, any lien or other similar right over or in relation to the Equipment or any equipment at Dakota Cloud’s data center(s).
5.4 Customer undertakes not to use the Service for any illegal or unlawful purpose or in a manner which constitutes a violation or infringement of the rights of any other party.
5.5 Customer will not use the Service and/or the Equipment to store, reproduce, transmit, communicate or knowingly receive any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of confidence, copyright, privacy, trademarks or any other rights of any third party, or other than in conformance with any acceptable usage policies that Dakota Cloud has agreed upon with connected network providers.
5.6 Customer must allow persons authorized by Dakota Cloud to enter Customer’s premises at all reasonable times for the purpose of maintaining, repairing, improving, upgrading, substituting or replacing the Equipment and/or the Software.
5.7 Dakota Cloud will normally carry out installation work during Customer’s usual working hours but may, on reasonable notice, require Customer to provide access at other times. At Customer’s request, Dakota Cloud may agree, exceptionally, to work outside Dakota Cloud’s usual working hours.
5.8 Customer will not, and will not permit any third party to, (a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, (b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (c) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or (d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law.
5.9 Customer will not allow any third party to use the Equipment or the Service. If Customer breaches this clause, Dakota Cloud may, without prejudice to its other rights, including the right to terminate the Agreement, require Customer to pay to Dakota Cloud, on demand, such set-up costs and all of the Monthly Charges which Dakota Cloud would have charged the third party had it entered into an agreement directly with the third party for the provision of equipment and services substantially the same as the Equipment and the Service for a minimum period of three years.
5.10 Customer will pay the Monthly Charges, Installation Charges and other charges in accordance with clause 6 herein.
5.11 The Customer shall at all times maintain all registrations and comply with all applicable South Dakota laws and all other federal, state, and/or local laws and regulations as may be necessary for its use of the Equipment and Service.
6. Charges and Payment
6.1 The Monthly Charges will commence on the Commencement Date.
6.2 All late payments shall bear interest at the rate of 18% per annum which shall be payable from the due date down to the date of payment, and to the time of any judgment for the same.
7. Breaches of Contract and Termination
7.1 Subject to clause 7.2, in the event that Customer or Dakota Cloud is in breach of the Agreement and such a breach is not remedied (other than as to the time for performance) within fourteen (14) days of receipt of written notice from Dakota Cloud, requiring such breach to be remedied, Dakota Cloud or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or Dakota Cloud, (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to clause 6.6.
7.2 Dakota Cloud shall be entitled, without prejudice to its other rights, to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer if Customer is in breach of clauses 5 or 6 or Customer fails on more than two occasions to pay any sum due under the Agreement within the period specified in the Agreement.
7.3 Either Customer or Dakota Cloud can terminate the Agreement forthwith if the other party becomes insolvent or makes any arrangement or assignment for the benefit of creditors or if any assets are the subject of any form of seizure or if the other party goes into liquidation, either voluntary or compulsory, or if a receiver or administrator is appointed over any or all of its assets.
7.4 If Dakota Cloud terminates the Agreement following a breach by the Customer of this Agreement or Customer fails to give sufficient notice of termination in accordance with clause 4.1, Customer will be liable to pay the Installation Charges, all cancellation fees, and other contractual charges incurred by Dakota Cloud relating to the provision of telecommunications services which have been ordered by Dakota Cloud for the purpose of the provision of the Service and Customer will also pay Dakota Cloud 75% of the Monthly Charges for the time being payable for the remainder of the Minimum Period or, if longer, the period of notice which Customer should have given to Dakota Cloud under clause 4.1.
7.5 The provisions of clause 1, 2, 4, 6, 7.4, 8, 9, 10, 11, 16 and 17 of these Terms will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.
All intellectual property rights in the Software remain vested in Dakota Cloud or Dakota Cloud’s licensors. Dakota Cloud grants Customer a non-exclusive, non-transferable limited licence to use the Software solely for the purpose of the Service and for no other purpose during the term of this Agreement.
9. Limitation of Liability
9.1 The liability of Dakota Cloud to Customer or Customer’s employees, agents, sub-contractors, customers or any other person under or in connection with the Contractual Documents shall be limited by the provisions of these Terms and, in particular, this clause 9.
9.2 Dakota Cloud’s total liability to the Customer under or in connection with the Contractual Documents (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Monthly Charges for the time being payable for 12 months.
9.3 Notwithstanding any other provision of the Contractual Documents, in no circumstance shall Dakota Cloud be liable to Customer under or in connection with the Contractual Documents or otherwise for:
- Any loss or corruption of data (whether temporary or permanent);
- Consequential, indirect, or incidental loss;
- Inability to restore data due to the loss of Customer's encryption keys;
- Loss of profits, revenue, business or anticipated savings increased expenses.
Customer shall indemnify Dakota Cloud on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands, and judgements that Dakota Cloud incurs or suffers as a result of a breach of clauses 5, 6, and 11.
11.1 Each party agrees:
- To keep confidential all the other party’s Confidential Information (whether written or oral) which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance or during the term of, the Agreement;
- Not to disclose the other party’s Confidential Information in whole or in part to any third party without the disclosing party’s written consent, save to those of its employees, agents and contractors involved in the implementation of the Agreement and who have a need to know the same and are bound to keep if confidential;
- To use the other party’s Confidential Information solely in connection with the performance of the Agreement and not otherwise or for the benefit of any other third party.
11.2 The provisions of clause 11.1 shall not apply to the whole or any part of Confidential Information which is:
- Lawfully obtained free of any duty of confidentiality otherwise than directly or indirectly from the disclosing party;
- Already in a party’s possession other than as a result of a breach of this clause 11;
- In the public domain (other than as a result of a breach of this clause 11); or
- Necessarily disclosed pursuant to a legal obligation;
11.3 The restrictions contained in this clause 11 shall continue to apply after the termination of the Agreement without limit in time.
12. No Waiver
The failure by either party to exercise or enforce any right conferred by the Contractual Documents shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.
13.1 Customer is not entitled to assign or novate its rights and/or obligations under the Contractual Documents without Dakota Cloud's written consent.
13.2 Dakota Cloud may assign or novate its rights and obligations under the Contractual Documents upon notice to Customer.
14. Service of Notices
14.1 Customer shall send Dakota Cloud any written notice or other document required by or in connection with the Contractual Documents to Dakota Cloud’s registered office for the time being or to any other address provided to Customer by Dakota Cloud in writing for the purpose.
14.2 Dakota Cloud shall send Customer any written notice or other document required by or in connection with the Contractual Documents to the address at which the Equipment is installed or situated, or to such other address provided to Dakota Cloud by Customer in writing for the purpose.
14.3 All notices and other documents sent by one party to the other shall be delivered by hand or sent by first class mail or by facsimile, and notices delivered by hand shall be deemed delivered on the date of delivery, notices sent by mail shall be deemed delivered three Business Days after posting and notices sent by fax shall be deemed delivered the day of transmission.
15. Force Majeure
Dakota Cloud shall not be liable for any breach of the Contractual Documents caused by matters beyond Dakota Cloud’s reasonable control, including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving Dakota Cloud’s employees), weather of exceptional severity or acts of Government or other authorities or regulatory bodies.
16. Third Party Rights
Without prejudice to any other right which any third party may have, nothing in the Contractual Documents shall confer on any third party any right to enforce any term of the Contractual Documents.
17. Governing Law
The Contractual Documents shall be governed and construed and interpreted in accordance with South Dakota Law and the parties hereby submit to the exclusive jurisdiction of the South Dakota Courts.