These terms (the “DRaaS Terms”) apply to UCG Technologies disaster recovery as-a-service (“DRaaS”), which is 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 DRaaS, Customer agrees to be bound by the General Enterprise Terms, these DRaaS Terms, and the applicable Order Form. Capitalized terms not defined in these DRaaS Terms have the meaning given to them in the General Enterprise Terms.
Subject to the terms and conditions of the Enterprise General Terms and these DRaaS Terms, UCG Technologies 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 level of DRaaS purchased (e.g., 48 hour recovery, 24 hour recovery, 12 hour recovery or 1 hour recovery), the Fees to be paid, the equipment covered by DRaaS (the “Covered Equipment”) and the premises where the Covered Equipment is located (the “Covered Site”). UCG Technologies will provide DRaaS 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 DRaaS. 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 UCG Technologies is required to expand greater resources to provide DRaaS, UCG Technologies will require the Customer to enter into an amended Order Form that accurately reflects the DRaaS 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 UCG Technologies notice of such Disaster in accordance with UCG Technologies procedures then in effect, then UCG Technologies will provide Customer with remote access to a UCG Technologies 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. UCG Technologies will continue to operate the Duplicate Environment until Customer has informed UCG Technologies 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”).
A Disaster may be declared only by the people 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 UCG Technologies.
The monthly fees for DRaaS 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 fee for each Disaster declaration.
Customer hereby grants to UCG Technologies a non-exclusive, worldwide, royalty-free, right and license to reproduce and use the software, applications and Customer Content necessary for UCG Technologies to create and maintain the Duplicate Environment (the “Customer DRaaS Materials”) solely as necessary to perform DRaaS. Customer represents and warrants that: (i) it has all the rights necessary to grant the foregoing license and (ii) that UCG Technologies reproduction and use of the Customer DRaaS Materials will not infringe the rights of any third party, including any intellectual property or privacy rights. Customer shall indemnify, defend and hold harmless UCG Technologies for any claims, damages, or losses (i) relating to the use of the Customer DRaaS Materials or (ii) arising from a third party's claim that the Customer DRaaS Materials infringe on such third party's intellectual property rights.
a. General. During the term of DRaaS, Customer shall:
(i) Notify UCG Technologies of any changes to Customer’s Environment. 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 UCG Technologies 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 DRaaS.
(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 DRaaS is used in an IBM i Series environment, customer shall notify UCG Technologies of all OS and PTF updates each time the operating system on the Covered Equipment is upgraded and as otherwise may be requested by UCG Technologies.
(vii) If a VPN is required, create and monitor the traffic. (UCG Technologies only provides the end target for the VPN.)
b. Testing. In accordance with the DR Plan and the DRaaS policies and procedures then in effect (“DRaaS Policies”), Customer will conduct disaster recovery testing (a “DRaaS Test”). During a DRaaS Test, Customer shall provide to UCG Technologies 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 DRaaS Test, within a reasonable amount of time after purchase, in accordance with UCG Technologies instruction. A DRaaS Test will be completed using Customer’s actual servers, server application sets and server count, as defined in the DR Plan. UCG Technologies will provide Customer with access to a Duplicate Environment in order to conduct a DRaaS Test, subject to the number of tests permitted under the level of DRaaS Services purchased by Customer, as set forth in the applicable Order Form. If Customer requires additional DRaaS Tests, a Duplicate Environment may be available to Customer at UCG Technologies then-current fees. Customer will schedule DRaaS Tests with at least sixty (60) days advanced written notice to UCG Technologies and in accordance with the DRaaS Policies. Priority for use of the Duplicate Environment is given to customers that have a declared Disaster. Accordingly, UCG Technologies reserves the right to reschedule DRaaS Tests.
If during a DRaaS Test UCG Technologies is unable to activate and operate the Duplicate Environment in material compliance with the DR Plan (the “DRaaS Test SLA”), UCG Technologies reserves the right to troubleshoot and re-conduct the DRaaS Test. If after reasonable efforts UCG Technologies is unable to meet the DRaaS Test SLA, either party may terminate DRaaS (and the applicable portion of any Order Form) and UCG Technologies will refund to Customer any prepaid but unused DRaaS 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 DRaaS within forty-five (45) days of the failed DRaaS 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 DRaaS Terms.
(ii) Comply with all DRaaS Policies, including that Customer will provide UCG Technologies its encryption keys as necessary to activate the Duplicate Environment.
(iii) Re-route all external IP addresses and aliases to the IP addresses associated with the Duplicate Environment.
(iv) 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.
(v) Provide its own equipment, such as laptops, in order to access and use the Duplicate Environment.
(vi) Provide the appropriate skills and knowledge required to recover, support and maintain the business applications being recovered in the Duplicate Environment.
(vii) Work diligently to install its applications on the Covered Equipment at the Covered Site with the intent of obtaining Covered Site Restoration.
(viii) Be responsible for all configurations of any third-party software according to third party vendor specifications.
(ix) Provide the required accounts necessary for operating system access to recover the machines, i.e. local administrator, domain administrator, root or (sudo) or QSECOFR.
DRaaS Service Level Guarantee. Customer may, as its exclusive remedy for material breach of these DRaaS Terms: (i) terminate the Agreement within five (5) days advance notice and (ii) receive a refund equal to the fees paid to UCG Technologies for the (3) month period immediately preceding the Disaster. This DRaaS Disaster service level guarantee not apply to (i) Customer’s breach of its obligations under the Agreement or any other cause beyond UCG Technologies 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.
Updated April 2018