Cloud Hosting Agreement

CLOUD HOSTING AGREEMENT

This Cloud Hosting Agreement (the "Agreement") is entered into as of Effective Date: between Client Name: and Provider Name: .

Recitals

WHEREAS, Client desires to obtain cloud hosting services, technical support and related services for certain applications, systems and data; and

WHEREAS, Provider is engaged in the business of providing secure cloud hosting, infrastructure, maintenance and support and represents that it has the necessary expertise, personnel and equipment to provide such services in accordance with this Agreement; and

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

Scope of Work

Service Levels and Support

Provider will use commercially reasonable efforts to achieve a monthly uptime availability of percent for the hosted services, measured on a rolling monthly basis. If Provider fails to meet the uptime commitment, Client may be entitled to service credits as set forth in the Service Level Addendum attached hereto or described in the Scope of Work. Service credits, if any, shall be Client's sole and exclusive remedy for service unavailability.

Payment Terms

Client shall pay Provider the fees set forth below in consideration for the services. Fees are non-refundable except as expressly provided in this Agreement.

All amounts due under this Agreement are exclusive of taxes. Client shall be responsible for all taxes, other than taxes based on Provider's net income.

Term and Termination

The term of this Agreement shall commence on Start Date: and shall continue until End Date: unless earlier terminated as provided herein.

Either party may terminate this Agreement for material breach by the other party if the breach remains uncured for the notice period set forth above. Either party may terminate immediately for insolvency or bankruptcy of the other party. Upon termination, Provider will, at Client's written direction and subject to payment of outstanding fees, return or securely delete Client Data in accordance with the Data Return and Deletion provisions below.

Confidentiality

Each party acknowledges that it may receive Confidential Information of the other party. "Confidential Information" means any non-public information designated as confidential or which should reasonably be understood to be confidential given its nature and the circumstances of disclosure, including Client Data, business plans, security measures and pricing. Each party agrees to (i) use Confidential Information only for the performance of this Agreement; (ii) restrict disclosure to those employees, agents or subcontractors with a need to know and who are bound by confidentiality obligations at least as protective as those herein; and (iii) take reasonable measures to protect Confidential Information from unauthorized access, disclosure or use. Confidential Information does not include information that is or becomes publicly known through no fault of the receiving party, is rightfully received from a third party without restriction, or is independently developed without use of the disclosing party's Confidential Information.

Data Security and Data Ownership

Client retains all right, title and interest in and to Client Data. Provider will maintain and implement administrative, physical and technical safeguards reasonably designed to protect the confidentiality, integrity and availability of Client Data, including industry-standard encryption for data in transit and, where applicable, at rest. Provider shall promptly notify Client of any actual unauthorized access to Client Data of which Provider becomes aware and shall cooperate in remediation and notification efforts as reasonably required.

Limitations of Liability; Indemnification

EXCEPT FOR LIABILITY ARISING FROM WILLFUL MISCONDUCT, GROSS NEGLIGENCE, INDEMNIFICATION OBLIGATIONS, OR EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES RECEIVED BY PROVIDER FROM CLIENT UNDER THIS AGREEMENT IN THE PRIOR TWELVE (12) MONTHS.

Provider will indemnify, defend and hold Client harmless from third-party claims arising from Provider's gross negligence or willful misconduct in the provision of the services. Client will indemnify, defend and hold Provider harmless from third-party claims arising from Client Data or Client's use of the services in violation of law or this Agreement.

Assignment and Subcontracting

Provider may engage subcontractors to perform services, provided that Provider remains responsible for the subcontractors' performance and compliance with this Agreement. Neither party may assign this Agreement without the prior written consent of the other, except to an affiliate or in connection with a merger, acquisition or sale of substantially all assets, provided the assignee assumes the assigning party's obligations.

Governing Law

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

Entire Agreement

This Agreement, including any annexes, schedules and statements of work executed under it, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals and communications, whether written or oral. Any amendment must be in writing and signed by authorized representatives of both parties.

Notices

Notices under this Agreement shall be in writing and shall be delivered to the addresses provided above or such other address as the receiving party may specify in writing.

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