Business Hosted Services Agreement

Business Hosted Services Agreement

This Business Hosted Services Agreement ("Agreement") is entered into as of by and between:

Client Name:    Client Address:

Provider Name:    Provider Address:

RECITALS

WHEREAS, Client desires to engage Provider to host, manage and provide continuous remote access to certain software and related services as described in this Agreement; and

WHEREAS, Provider represents that it has the expertise, facilities, personnel and technical resources to provide hosted services and the associated support, maintenance and data security obligations set forth herein; and

WHEREAS, the parties wish to set forth the terms and conditions under which Provider will provide hosted services to Client.

SCOPE OF WORK

Provider will furnish hosted services as described below. Provider shall perform the services in a professional manner consistent with industry standards and the specific obligations set forth in this Agreement.

PAYMENT TERMS

Client shall pay Provider the fees set forth below in consideration for the services. All fees are exclusive of taxes, which shall be the responsibility of Client unless a valid exemption applies.

Past due amounts shall accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Additionally, Provider may suspend service for non-payment after days' written notice.

TERM AND TERMINATION

This Agreement commences on the Start Date set forth below and continues until the End Date unless earlier terminated in accordance with this Agreement.

Start Date:    End Date:

Either party may terminate this Agreement for material breach that remains uncured for days following written notice specifying the breach. Either party may terminate for convenience upon days' prior written notice. Termination does not relieve Client of its obligation to pay for services rendered through the effective date of termination and any non-cancellable commitments incurred by Provider in performance.

CONFIDENTIALITY

"Confidential Information" means nonpublic information disclosed by one party to the other that is clearly designated as confidential or that a reasonable person would understand to be confidential given the nature of the information. Each receiving party shall (i) use Confidential Information solely to perform under this Agreement; (ii) restrict disclosure to employees, subcontractors and agents with a need to know and who are bound by confidentiality obligations at least as protective as those in this Agreement; and (iii) protect Confidential Information with at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.

Confidential Information does not include information that is: (a) publicly available other than by breach of this Agreement; (b) rightfully received from a third party without confidentiality obligations; (c) independently developed without use of the disclosing party's Confidential Information; or (d) required to be disclosed by law, provided the receiving party gives prompt written notice and cooperates to seek protective measures.

DATA SECURITY AND PRIVACY

Provider shall implement and maintain administrative, technical and physical safeguards appropriate to the nature of the Hosted Services and Client Data, including access controls, encryption in transit and at rest where applicable, and monitoring. In the event of an unauthorized access or data breach affecting Client Data, Provider will notify Client promptly and take commercially reasonable steps to contain and remediate the breach.

SERVICE LEVELS AND MAINTENANCE

Provider will use commercially reasonable efforts to maintain availability of hosted services in accordance with any service level commitments set forth in the Scope of Work. Scheduled maintenance shall be communicated to Client in advance and shall not constitute a breach if conducted during pre-notified maintenance windows. Credits, if any, for failure to meet service levels are Provider's sole and exclusive remedy for unavailability.

INTELLECTUAL PROPERTY

Each party retains all right, title and interest in and to its pre-existing intellectual property. Provider grants Client a limited, non-exclusive, non-transferable license to use the Provider software and services solely as necessary to receive the services. Client retains ownership of Client Data, and Provider acquires no rights to Client Data except as necessary to provide the services and as expressly set forth in this Agreement.

INDEMNIFICATION AND LIMITATION OF LIABILITY

Each party shall indemnify and hold harmless the other from third-party claims arising from its gross negligence, willful misconduct or material breach of this Agreement. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. PROVIDER'S AGGREGATE LIABILITY SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT TO PROVIDER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE CLAIM.

NOTICES

All notices required or permitted under this Agreement shall be in writing and delivered to the addresses set forth below or to such other address as either party designates by written notice.

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 laws principles. The parties consent to the exclusive jurisdiction of the state and federal courts located in that State for any dispute arising out of or related to this Agreement.

ENTIRE AGREEMENT

This Agreement, together with any schedules and attachments expressly incorporated herein, constitutes the entire agreement between the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, proposals, negotiations and communications, whether written or oral. Any modification must be in writing and signed by authorized representatives of both parties.

MISCELLANEOUS

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect. Neither party may assign this Agreement without the other party's prior written consent, except that Provider may assign to an affiliate or in connection with a sale of substantially all of its assets.

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