Business Hosted Service Agreement

Business Hosted Service Agreement

This Business Hosted Service Agreement ("Agreement") is made effective as of (the "Effective Date"), by and between Service Provider: with principal place of business at , and Client: with principal place of business at .

Recitals

WHEREAS, Service Provider operates and maintains hosted software, infrastructure and related managed services and possesses technical expertise to provide hosted services to business customers; and

WHEREAS, Client desires to procure hosting, access and related managed services from Service Provider, and Service Provider agrees to provide such services subject to the terms and conditions of this Agreement; and

WHEREAS, the parties intend for this Agreement to set forth the parties' respective rights, obligations, performance standards and pricing for the hosted services.

Scope of Work

Service Provider will host, maintain and provide access to the services and related components described below. Service Provider shall provide support, maintenance and monitoring in accordance with the service levels set forth in this Agreement and any statement of work incorporated herein.

Payment Terms

Client shall pay Service Provider the fees for services as set forth below. Fees shall be payable in United States dollars and are exclusive of applicable taxes unless otherwise stated.

Invoices are due within days of invoice date. Late payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, beginning on the due date and continuing until paid in full.

Term and Termination

This Agreement shall commence on Start Date: and shall continue until End Date: unless earlier terminated in accordance with this Agreement.

Either party may terminate this Agreement for convenience upon days' prior written notice to the other party. Either party may terminate for material breach if the breaching party fails to cure such breach within days after receipt of written notice specifying the breach.

Upon termination, Service Provider shall cease providing services and Client shall pay all fees and expenses accrued through the effective date of termination. If termination is for Service Provider's uncured material breach, Client shall be entitled to a prorated refund of pre-paid fees for the unused portion of the service term.

Confidentiality

Each party (the "Recipient") shall hold in strict confidence and not disclose to any third party any Confidential Information of the other party (the "Discloser"). "Confidential Information" includes trade secrets, technical and business information, customer lists, pricing, product roadmaps, system architecture, security measures, and any other information marked or reasonably understood to be confidential.

The Recipient shall use Confidential Information solely for performance under this Agreement, shall limit access to employees, contractors and agents who have a need to know and are bound by confidentiality obligations, and shall use at least the same degree of care as it uses to protect its own confidential information, but no less than reasonable care.

Service Levels and Security

Service Provider shall use commercially reasonable efforts to provide availability of the hosted services of no less than on a monthly basis, excluding scheduled maintenance windows and events outside Service Provider's reasonable control.

Service Provider shall implement industry-standard administrative, physical and technical safeguards to protect Client Data. Client acknowledges that no system is completely secure and Service Provider does not warrant absolute security.

Intellectual Property; Data Rights

Client retains ownership of all Client Data provided to or processed by Service Provider in connection with the services. Service Provider retains ownership of its pre-existing technology, software, tools and methodologies. Nothing in this Agreement grants the Client any rights to Service Provider's proprietary source code or underlying platform other than the limited right to access and use the hosted services as provided.

Limitation of Liability

Except for liability arising from gross negligence, willful misconduct, breach of confidentiality or violations of law, neither party shall be liable to the other for indirect, incidental, consequential, special or punitive damages. The aggregate liability of Service Provider for claims arising out of or related to this Agreement shall not exceed the total fees paid by Client to Service Provider under this Agreement in the twelve (12) months preceding the event giving rise to liability.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its conflict of law principles. The parties submit to the exclusive jurisdiction of the courts located in that state for disputes arising under this Agreement.

Entire Agreement

This Agreement, together with any statement of work or schedules expressly incorporated in writing, constitutes the entire agreement between the parties and supersedes all prior negotiations, representations or agreements, whether written or oral, relating to the subject matter hereof. No amendment shall be effective unless in writing and signed by authorized representatives of both parties.

Notices

Notices under this Agreement shall be in writing and delivered to the addresses set forth above or to such other address as either party may designate in writing. Notices are effective upon receipt.

Miscellaneous

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect. The parties are independent contractors and nothing contained herein creates a partnership, joint venture or agency relationship. Neither party may assign this Agreement without the prior written consent of the other, except that Service Provider may assign to an affiliate or in connection with a sale of substantially all of its assets.

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