Cloud Disaster Recovery Services
INTRODUCTION
These terms (the “CDR Terms”) apply to Carbonite’s Cloud Disaster Recovery Services (“CDR Services”), which consists of cloud-based, managed services that enable: (a) ongoing availability of Customer’s information technology operations and (b) recovery of mission-critical applications, servers, and data in the cloud after a Disaster (as defined below). By purchasing or using the CDR Services, Customer agrees to be bound by the General Enterprise Terms, these CDR Terms, and the applicable Order Form. Capitalized terms not defined in these CDR Terms have the meaning given to them in the General Enterprise Terms.
1. PERFORMANCE
Subject to the terms and conditions of the Enterprise General Terms and these CDR Terms, Carbonite will provide to Customer a disaster recovery plan (a “DR Plan”) as set forth in an Order Form. The Order Form and DR Plan will identify the service level purchased (e.g., 1 hour recovery, 24 hour recovery or 48 hour recovery), the Fees to be paid, the equipment covered by the CDR Services (the “Covered Equipment”) and the premises where the Covered Equipment is located (the “Covered Site”). Carbonite will provide the CDR Services solely in connection with the Covered Equipment as configured at the Covered Site and as described in the DR Plan. Equipment and devices not identified in the DR Plan or not accurately described and/or configured in accordance with the DR Plan fall outside the scope of the CDR Services. In the event that the Covered Equipment and/or configurations identified in the DR Plan are different than the Covered Equipment and configuration in the Order Form, and Carbonite is required to expand greater resources to provide the CDR Services, Carbonite will require the Customer to enter into an amended Order Form that accurately reflects the CDR Services to be provided in accordance with the DR Plan.
In the event that Customer: (i) is unable to use the Covered Equipment in a production environment at the Covered Site for its intended computer processing and related business production purposes (a “Disaster”) and (ii) provides Carbonite notice of such Disaster in accordance with Carbonite procedures then in effect, then Carbonite will provide Customer with remote access to a Carbonite-hosted environment that duplicates the functionality of the Covered Equipment at the Covered Site as described in the DR Plan (the “Duplicate Environment”) and transferred Customer Content as hosted in the Duplicate Environment, subject further to the terms herein. Carbonite will continue to operate the Duplicate Environment until Customer has informed Carbonite via email that it is again able to use the Covered Equipment in a production environment at the Covered Site, and that the Disaster has ended (“Covered Site Restoration”).
2. INDIVIDUALS DESIGNATED TO DECLARE A DISASTER
A Disaster may be declared only by the individuals authorized by Customer in the respective Order Form, DR Plan or otherwise identified by Customer in writing. Customer may change the designated individuals by written notice to Carbonite.
3. FEES
The monthly fees for the CDR Services are set forth in the applicable Order Form. In addition, in the event of a Disaster, Customer will pay the additional Disaster specific fees then in effect. For the avoidance of doubt, Customer shall pay a per server fee for each Disaster declaration.
4. CUSTOMER MATERIALS
Customer hereby grants to Carbonite a non-exclusive, worldwide, royalty-free, right and license to reproduce and use the software, applications and Customer Content necessary for Carbonite to create and maintain the Duplicate Environment (the “Customer Materials”) solely as necessary to perform the CDR Services. Customer represents and warrants that: (i) it has all the rights necessary to grant the foregoing license and (ii) that Carbonite’s reproduction and use of the Customer Materials will not infringe the rights of any third party, including any intellectual property or privacy rights. Customer shall indemnify, defend and hold harmless Carbonite for any claims, damages, or losses (i) relating to the use of the Customer Materials or (ii) arising from a third party's claim that the Customer Materials infringe on such third party's intellectual property rights.
5. CUSTOMER OBLIGATIONS
a. General. During the term, Customer shall:
(i) Notify Carbonite of any changes to Customer’s Environment and update the Customer portal accordingly. Changes to Customer’s Environment include without limitation, adding servers to the Customer’s Environment or changes to servers within the Customer’s Environment.
(ii) Determine whether the service level selected by Customer and specified in the applicable Order Form is sufficient to meet Customer’s requirements for continuing its information processing activities in the event of a Disaster.
(iii) Comply with Carbonite’s policies and procedures, including such policies related to declaring a Disaster and confirming Covered Site Restoration.
(iv) Perform Customer obligations identified in the DR Plan or otherwise agreed upon by the parties and related to the CDR Services.
(v) Maintain the Covered Equipment at the Covered Site in accordance with operational requirements, and to the extent that any Covered Equipment is third-party equipment, in accordance with the requirements of the third-party equipment manufacturer.
(vi) If the CDR Services are used in an IBM environment, provide to Carbonite a SAVSYS tape or SAVSYS optical media prior to commencement of the CDR Services each time the operating system on the Covered Equipment is upgraded and as otherwise may be requested by Carbonite.
(vii) If an IPsec tunnel is required, create and monitor the traffic on the tunnel. (Carbonite only provides the end target for the IPsec tunnel.)
(viii) Provide a site edge device to be supported by Cisco for IPsec tunneling to initiate the IPsec tunnel.
(ix) Maintain and monitor the status and health of the domain controller.
(x) Conduct disaster recovery testing as provided in Section 5(b) below.
(xi) In connection with CDR Services with a 1 hour service level, support and maintain the Customer DRaaS Materials in the Duplicate Environment in accordance with the Documentation and create and maintain a domain controller in the Duplicate Environment.
b. Testing. In accordance with the DR Plan and the CDR policies and procedures then in effect (“CDR Policies”), Customer will conduct disaster recovery testing (a “CDR Test”). During a CDR Test, Customer shall provide to Carbonite the Customer encryption key(s) and the required accounts necessary for operating system access to recover machines, i.e. local administrator, domain administrator, root or (sudo) or QSECOFR. Customer shall remain responsible for all configurations of any third-party software according to third-party vendor specifications. Customer will perform the CDR Test, within a reasonable amount of time after purchase, in accordance with Carbonite’s instruction. A CDR Test will be completed using Customer’s actual servers, server application sets and server count, as defined in the DR Plan. Carbonite will provide Customer with access to a Duplicate Environment in order to conduct a CDR Test, subject to the number of tests permitted under the level of CDR Services purchased by Customer, as set forth in the applicable Order Form. If Customer requires additional CDR Tests, a Duplicate Environment may be available to Customer at Carbonite’s then-current fees. Customer will schedule CDR Tests with at least sixty (60) days advanced written notice to Carbonite and in accordance with the CDR Policies. Priority for use of the Duplicate Environment is given to customers that have a declared Disaster. Accordingly, Carbonite reserves the right to reschedule CDR Tests.
If during a CDR Test Carbonite is unable to activate and operate the Duplicate Environment in material compliance with the DR Plan (the “CDR Test SLA”), Carbonite reserves the right to troubleshoot and re-conduct the CDR Test. If after reasonable efforts Carbonite is unable to meet the CDR Test SLA, either party may terminate the CDR Services (and the applicable portion of any Order Form) and Carbonite will refund to Customer any prepaid but unused fees as Customer’s sole and exclusive remedy. Each party’s right of termination under this Section 5(b) must be exercised by written notice of its intention to terminate the CDR Services within forty-five (45) days of the failed CDR Test or such right of termination will be waived.
c. Disaster. At any time between the date that Customer declares a Disaster and the date that Customer provides notice that the Covered Site has been Restored (the “Disaster Recovery Period”),Customer will:
(i) Provide assistance and otherwise perform its obligations as set forth in these CDR Terms.
(i) Comply with all CDR Policies, including that Customer will provide Carbonite its encryption keys as necessary to activate the Duplicate Environment.
(ii) Re-route all external IP addresses and aliases to the IP addresses associated with the Duplicate Environment.
(iii) Otherwise make available any equipment, software, workspace, supplies, and personnel and/or telecommunications services needed to activate and operate the Duplicate Environment, including those not specifically identified in the DR Plan.
(iv) Provide its own equipment, such as laptops, in order to access and use the Duplicate Environment.
(v) Provide the appropriate skills and knowledge required to recover, support and maintain the business applications being recovered in the Duplicate Environment.
(vi) Work diligently to install its applications on the Covered Equipment at the Covered Site with the intent of obtaining Covered Site Restoration.
(vii) Be responsible for all configurations of any third-party software according to third party vendor specifications.
(viii) Provide the required accounts necessary for operating system access to recover the machines, i.e. local administrator, domain administrator, root or (sudo) or QSECOFR.
CDR Service Level Guarantee. Customer may, as its exclusive remedy for material breach of these CDR Terms: (i) terminate the Agreement within five (5) days advance notice and (ii) receive a refund equal to the fees paid to Carbonite for the (3) month period immediately preceding the Disaster. This CDR Disaster service level guarantee does not apply to (i) Customer’s breach of its obligations under the Agreement or any other cause beyond Carbonite’s reasonable control, (ii) any self-service Disaster declarations, tests or failovers, or (iii) any period of time outside the DR Plan, including but not limited to the restoration of the Covered Equipment at the Covered Site.