Managed Backup Service Endorsement
Last updated 7-21-2025
BY ACCEPTING THIS ENDORSEMENT, EITHER BY INDICATING YOUR ACCEPTANCE, BY EXECUTING A SALES ORDER THAT REFERENCES THIS ENDORSEMENT, OR BY RECEIVING OR UTILIZING THE SOFTWARE OR SERVICES (AS DEFINED BELOW), YOU AGREE TO ALL THE TERMS OF THIS ENDORSEMENT, SUBJECT TO THE TERMS OF THE MASTER AGREEMENT, EITHER SERVICE OR MANAGED SERVICE, REFERENCED ON THE SALES ORDER.
1. Scope
The terms and conditions set forth below are intended to supplement the applicable Managed Service agreement and rely upon its entire structure. The definitions, subheadings etcetera of the applicable Managed Service agreement shall supersede any similar items within this agreement.
2. Definitions
For purposes of this Endorsement, the following definitions shall apply:
“Data” shall mean the electronic-based files that Client is requesting Kelley Brothers IT to back up.
“Data Center” shall mean the physical location that houses the electronic data processing equipment required to receive, store and transmit Client data.
“Backup Service Provider” shall mean the entity who hosts the data center on which Client’s data is stored. This Backup Service Provider also provides the software used to transport your data from the computer system to their data center.
“Service” shall mean the backup system functionality being provided by the Backup Service Provider
“Backup Software” shall mean the software provided by Backup Service Provider and installed on the backed up computer system.
“Retention period” shall mean the maximum length of time that a file will be retained once the original version has been overwritten.
“EULA” shall mean the End User License Agreement provided by Backup Service Provider in connection with the Service.
3. Client Conduct
As a condition of your use of the Service, you agree that you will not use the Services for any unlawful purpose. Without limiting the foregoing, you agree that you will not use the Services: (i) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) to violate any applicable law, statute, ordinance or regulation; (iii) to disseminate any content in any form or format that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable under applicable laws or community standards; or (iv) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You are solely responsible for all Data (as defined above) that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Service, and you will be solely responsible for any damage to any party resulting there from.
4. Privacy & Data Protection
Kelley Brothers IT implements controlled access policies and two factor authentication in a best effort to prevent unauthorized access to Client Data. However, the EULA provided by the Backup Service Provider shall act as the authority in relation to privacy and data protection. For more information, please refer to the Backup Service Provider EULA.
4.2 Account access
You agree that Kelley Brothers IT may access user accounts, including Data, to respond to service or technical problems or at your request.
5. Termination
5.1 Service Provider’s right to termination
Without limiting other remedies, Kelley Brothers IT may limit, suspend, or terminate its legal agreement with you, terminate your use of Software, prohibit access to the Services and delete your user account, effective immediately, if (i) Kelley Brothers IT believes that you are in breach of the Terms, creating problems, possible legal liabilities, infringing someone else’s intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons, (ii) if Kelley Brothers IT is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful), (iii) if Kelley Brothers IT is transitioning to no longer providing the Service offered or (iv) the provision of Services to you is no longer, in Kelley Brothers IT’s opinion, commercially viable. Kelley Brothers IT shall effect such termination by providing notice to you to the email address you have provided, and/or by preventing your access to your user account.
5.2 Client’s right to termination
You may terminate the Service prior to the expiration of the then current subscription term only for cause, i.e. a material breach by us of the Managed Service Agreement or this endorsement, provided that you provide Kelley Brothers IT notice of such breach and that we have not cured the breach within 30 days of you notifying us of the breach.
5.3 Post termination data retention policy
Upon termination, you may request a file of your data, which Kelley Brothers IT will make available with or without a fee, at their discretion. You must make such request within thirty (30) days of the effective date of termination. Otherwise, ANY DATA YOU HAVE STORED USING THE BACKUP SERVICE PROVIDER’S SERVICE MAY NOT BE RETRIEVED, and Kelley Brothers IT shall have no obligation to maintain any data stored in your account or to forward any data to you or any third party.
6. Copyright Complaints and Removal Policy
It is the Backup Service Provider’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. Backup Service Provider does not permit material infringing copyright law on its equipment or network, and reserves the right to remove from Backup Service Providers Data Center any content that infringes any copyright or other intellectual property rights. For more information please refer to the Backup Service Provider EULA.
7. Indemnity
7.1 Limitation of Liability for Third-Party Services
Kelley Brothers IT is not involved in the data center or business operations of the Backup Service Provider. Therefore, they cannot be held responsible for the loss, unauthorized access to or copyright infringement of Client Data as a result of the errors, omissions or illegal activities of the Backup Service Provider or its representatives.
7.2 No Liability for Client Use of Service
Furthermore, Client agrees that Kelley Brothers IT shall have no liability whatsoever for any use you make of the Service. You agree to indemnify, defend and hold Kelley Brothers IT harmless from and against any and all claims, damages, liabilities, and costs and fees (including reasonable attorneys’ fees), in connection with or arising out of your (a) violation or breach of any term of this endorsement or the applicable Managed Service Agreement, whether or not referenced herein, or (b) violation of any rights of any third party, (c) use or misuse of the Service.
7.3 Scope of Covered Devices
Furthermore, only the devices listed on the sales order which referenced this agreement shall be a part of it. Client understands that any device NOT listed on the sales order shall NOT BE BACKED UP. Client agrees that Kelley Brothers IT shall have no liability or obligation in relation to any device not listed on the sales order. A supplemental sales order is required any time a device needs to be added or removed from the Service.
8. Software License
Backup Software is licensed, not sold to you, and is licensed only for your personal use pursuant to the EULA provided by the Backup Service Provider. You may not sell, assign, rent, lease, distribute, export, act as an intermediary or provider, or otherwise grant rights to third parties with regard to all or any part of the Software. You may not modify, reverse-engineer, decompile, disassemble, or attempt to discover the source code, structure or sequence, or otherwise hack, the Software, and have no rights to create derivative works from the Software.
9. Compliance
Client is responsible for complying with HIPAA, PHI, PCI etc. If you want to use the service in connection with protected health information (PHI), you may request to enter a business associate agreement (BAA) with the Backup Service Provider and Kelley Brothers IT. In the event Backup Service Provider AND Kelley Brothers IT agree to enter a BAA with you, you agree that you may incur additional charges and fees and that the BAA shall govern Backup Service Provider’s and Kelley Brothers IT’s receipt, creation, maintenance, and transmission of PHI under HIPAA and the Terms.
10. Retention
Unless the termination section of this agreement applies, files shall be retained according to the retention periods listed on the sales order. After this time period, old versions of files will be deleted with NO NOTICE PROVIDED. Once old file versions are deleted they WILL BE ABSOLUTELY IRRECOVERABLE.
11. Backup Service Provider Changes
Kelley Brothers IT reserves the right to change Backup Service Providers as they see fit from that which is listed in Exhibit A below. They will provide notice to you at least 30 days in advance and will ensure that retention of old file versions follows the retention section of this agreement. The retention period may change if the termination clause of this agreement is enacted.
A new EULA agreement with the new Backup Service Provider may be required before the change can take place. If Client rejects the new EULA they will have the option to retrieve their data from Backup Service Provider within 30 days. After 30 days the account will be deleted.
12. Amendment
This Endorsement may be modified or amended in writing, only if said writing is signed by all parties to the agreement.