Fill and Sign the Form 10 Ka Amendment No 1 Secgovhome

-1- 2.06 Form: Vendor-Oriented Web Site Hosting Agreement This AGREEMENT (the "Agreement") is made and entered into as of the day of __________ 20__ (the "Effective Date"), by and between XYZ Corporation, a ____________________ corporation with offices at 2 Computer Way, Los Angeles, California ("Host") and, _______________________ a ________________________ corporation with offices at _______________________, _______________________, _______________________ ("Client") (each being referred to individually as a "Party" and collectively as the "Parties"). WITNESSETH WHEREAS, Host is in the business of offering Internet services relating to, among other things, hosting of sites on the World Wide Web portion of the Internet and is willing to provide services to Client on the terms and subject to the conditions set forth below; and WHEREAS, Client desires to engage Host, and Host desires to be engaged by Client, to provide such Internet services on the terms and subject to the conditions set forth below. NOW, THEREFORE, in consideration of the mutual promises set forth herein, Host and Client (the "Parties") hereby agree as follows: -2- 1. Services 1.1 Hosting Services Host agrees to provide Client with services for hosting of a site on the World Wide Web portion of the Internet (the "Web Site") as set forth or described in Schedule A hereto (the "Hosting Set-vices"). Host shall provide the Hosting Services so that the Web Site is accessible to third parties via the World Wide Web portion of the Internet as specified herein. Except as expressly provided herein, Client agrees that Host is responsible only for providing the Hosting Services, and Host is not responsible for providing any services or performing any tasks not specifically set forth in Schedule A. At the time of execution of this Agreement, to the extent that Client wishes to receive from Host, and Host wishes to provide to Client, services other than the Hosting Services such as, by way of example only, services relating to listserves, gopher, FTP, or e-mail, (collectively, the "Additional Services"), such Additional Services and the arrangements for their provision shall be set forth in a separate addendum to this Agreement which is duly executed by the Parties (the "Services Addendum"), and the Services Addendum shall be incorporated into, and become a part of this Agreement. (The Hosting Services and the Additional Services will hereinafter be referred to collectively as the "Services"). 1.2 Content Client shall provide to Host all materials comprising the Web Site, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video -3- clips or text (the "Client Content"), which shall be in a correct format (as specified by Host in consultation with Client), including, but not limited to, HTML format. The Client Content shall be properly adapted and translated by Client for posting to the Host server (the "Host Server") so that the Web Site may be accessed via the Internet. 1.3 Availability of Web Site Unless otherwise indicated on Schedule A hereto, the Web Site shall be accessible to third parties via the World Wide Web portion of the Interact twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Hosting Services due to causes beyond the control of Host or which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Inter-net slow- downs or failures. In the event of any loss or interruption of Hosting Services, Client's sole and exclusive remedy and Host's sole and exclusive liability for any loss or interruption of Hosting Services shall be as follows: for loss or interruption of Hosting Services which is due to (i) causes other than scheduled maintenance and required repairs, or (ii) causes beyond the control of Host, or (iii) causes which are not reasonably foreseeable by Host, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures, which loss or interruption of Hosting Services exceeds a continual period of twenty-four (24) hours, -4- Client shall receive a credit against future Hosting Services equal to a pro rata portion of Hosting Services fees for the period of downtime (which shall be a pro rata portion of the Hosting Services fees for __________ (__) year of Hosting Services). 1.4 Domain Name Registration As part of the initial Hosting Services, Client shall provide Host with a registered domain name, or Host shall register __________ (__) domain name(s) selected by Client provided that such domain name is available for registration and does not violate any InterNIC or other registration services' policies, or any law or regulation. Client agrees to promptly reimburse to Host any fees paid by Host to InterNIC or other registration services with respect to the registration and maintenance of such domain name. 1.5 Domain Name Disputes In the event of any dispute or cause of action arising out of or related to Client's domain name used in connection with the Web Site, upon Client's request Host will attempt to register with InterNIC an alternative domain name chosen by Client and attempt to make the Web Site available over the Internet under such alternative name for an additional fee to be charged to Client pursuant to the fee and payment schedule set forth in Schedule B hereto. -5- 1.6 Additional Storage and Transfer In the event that the Web Site requires storage and transfer on the Host Server which exceeds the amount of storage included in the Hosting Services, Client may, upon __________ (__) days written notice to Host, request that Host (a) upgrade the level of Hosting Services, or (b) acquire additional incremental storage to be included in the Hosting Services, on a time and materials basis and in accordance with the fee and payment schedule in Schedule B hereto. Host shall review all such requests and determine, in consultation with Client, whether it can reasonably comply with such requests and, if so, Host shall propose a procedure and budget for complying with such request. 1.7 Updates As part of the Hosting Services, Host shall provide Client with a system and the necessary software to allow Client to transmit revisions, updates, deletions, enhancements or modifications (the "Updates") to a staging server designated by Host (the "Staging Server"). Host shall update the Host Server with the Updates according to a schedule agreed upon by the Parties, in writing, provided that (i) Client is not in default of its payment obligations hereunder, (ii) such Updates are within the scope of the Hosting Services under this Agreement; and (iii) such Updates are in a form which may be placed on the Host Server and accessed over the Internet. If the Updates are not within the scope of the Hosting Services under this Agreement, such Updates shall not be made unless and until the Parties enter into a -6- Services Addendum setting forth the terms and conditions of such Updates. 2. License and Proprietary Rights 2.1 Proprietary Rights of Client As between Client and Host, Client Content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Except as provided in this Section 2.1, nothing in this Agreement shall be construed to grant Host any ownership right in, or license to, the Client Content provided by Client to Host. Client hereby grants to Host a non-exclusive, worldwide, royalty-free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement. 2.2 Proprietary Rights of Host All materials, including but not limited to any computer software (in object code and source code form), data or information developed or provided by Host or its suppliers under this Agreement, and any know-how, methodologies, equipment, or processes used by Host to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Host Materials") shall remain the sole and exclusive -7- property of Host or its suppliers. To the extent, if any, that ownership of the Host Materials does not automatically vest in Host by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Host all rights, title and interest which Client may have in and to the Host Materials. Client acknowledges and agrees that Host is in the business of designing and hosting Web sites, and that Host shall have the right to provide to third parties services which are the same or similar to the Hosting Services, and to use or otherwise exploit any Host Materials in providing such services. 2.3 Confidentiality Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving Party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this -8- Agreement, each Party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with this Agreement. Each Party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each Party and its employees shall survive the expiration or termination of this Agreement. 3. Client Content 3.1 Client Content Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party web sites, (b) the accuracy of materials on the Web Site, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Host reserves the right, in its sole discretion, to exclude or remove from the Web Site any hypertext links to third party web sites, any Client Content on the Web Site, or other content not supplied by Host which, in Host's sole reasonable discretion, may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Host to monitor or exert editorial control over the Web Site. -9- 3.2 Limitations on Client Content Client shall place and cause to be placed on the Web Site Client Content that does not contain any content or materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes Host to civil or criminal liability. Any such materials placed on the Web Site which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement. 3.3 Chat Rooms and Bulletin Boards Chat rooms, bulletin boards and discussion forums shall not be in-eluded in the Web Site and may not be implemented by or on behalf of Client without prior written approval of Host. 4. Fees and Taxes 4.1 Hosting Services Fees Client shall pay Host all fees for the Hosting Services in accordance with the applicable fee and payment schedule set forth in Schedule B hereto. Host expressly reserves the right to change its rates charged hereunder for the Services during any Renewal Term (as defined herein). 4.2 Additional Services Fees Unless otherwise agreed in writing, Client shall pay to Host all fees for Additional Services on a time and materials basis as invoiced by Host. -10- 4.3 Out-of-Pocket Expenses Client shall pay, or promptly reimburse Host for, any out-of-pocket expenses, including, without limitation, travel and travel-related expenses, incurred by Host in connection with the performance of the Services. 4.4 Late Payment Client shall pay to Host all fees not specifically itemized on Schedule B within __________ (__) days of the date of the applicable Host invoice. If Client fails to pay any fees within __________ (__) days from the date due according to Schedule B, or within __________ (__) days from the date of an invoice, where applicable, late charges of the greater of percent __________ (__%) per month or the maximum allowable under applicable law shall also become payable by Client to Host. In addition, failure of Client to fully pay any fees within __________ (__) days after the applicable due date shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Host, and will be sufficient cause for immediate termination of this Agreement by Host. Any such suspension does not relieve Client from paying past due fees plus interest and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys' fees, court costs and collection agency fees. -11- 4.5 Taxes Client shall pay or reimburse Host for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by Host under this Agreement; excluding, however, income taxes on profits which may be levied against Host. 5. Warranties 5.1 Host Warranties Host represents and warrants that (a) Host has the power and authority to enter into and perform its obligations under this Agreement, and (b) Host's Services under this Agreement shall be performed in a workmanlike manner. 5.2 Client Warranties Client represents and warrants that: (a) Client has the power and authority to enter into and perform its obligations under this Agreement; (b) Client Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of a third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, and that Client owns the Client Content or otherwise has the right to place the Client Content on the Web Site; and (c) Client has obtained any authorization(s) necessary for hypertext links from the Web Site to other third party Web sites. Should Client receive notice of a claim regarding the Web -12- Site, Client shall promptly provide Host with written notice of such claim. 5.3 Disclaimer of Warranty EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, HOST MAKES NO WARRANTIES HEREUNDER, AND HOST EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 6. Indemnification 6.1 Client Client agrees to indemnify, defend, and hold harmless Host, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the Web Site infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses. 6.2 Host Host agrees to indemnify, defend, and hold harmless Client, its directors, officers, -13- employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action arises out of the gross negligence or willful misconduct of Host. 6.3 Notice In claiming any indemnification hereunder, the indemnified Party shall promptly provide the indemnifying Party with written notice of any claim which the indemnified Party believes falls within the scope of the foregoing paragraphs. The indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified Party shall not be final without the indemnified Party's written consent, which shall not be unreasonably withheld. 7. Limitation of Liability HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, THE WEB SITE OR CLIENT'S DATA FILES, PROGRAMS OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES. HOST SHALL HAVE NO LIABILITY WITH RESPECT TO HOST'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF HOST TO CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL -14- BE LIMITED TO THE AMOUNT ACTUALLY PAID TO HOST BY CLIENT UNDER THIS AGREEMENT DURING THE __________ (__) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. 8. Termination and Renewal 8.1 Term This Agreement shall be effective when signed by the Parties and thereafter shall remain in effect for __________ (__) year(s), unless earlier terminated as otherwise provided in this Agreement (the "Initial Term"). This Agreement shall automatically be renewed beyond the Initial Term for additional __________ (__) year terms (each, a "Renewal Term") unless Client provides Host with a written notice of termination at least __________ (__) days prior to the expiration of the Initial Term or the then-current Renewal Term. 8.2 Termination Either Party may terminate this Agreement if a bankruptcy proceeding is instituted against the other Party which is acquiesced in and not dismissed within __________ (__) days, or results in an adjudication of bankruptcy, or the other Party materially breaches any of its representations, warranties or obligations under this Agreement, and such breach is not cured within (__) days of receipt of notice specifying the breach, except that the cure period for failures of payment obligations -15- shall be __________ (__) days. Host may terminate this Agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Hosting Services not yet rendered on the date of termination. 8.3 Termination and Payment Upon any termination or expiration of this Agreement, Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of this Agreement. 9. Liaison Each Party shall designate one (1) person who will act as the primary liaison for all communications regarding Hosting Services. 10. Miscellaneous 10.1 Entire Agreement This Agreement and attached Schedules constitute the entire agreement between Client and Host with respect to the subject matter hereof and there are no representations, understandings or agreements which are not fully expressed in this Agreement. 10.2 Cooperation The Parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the Parties. -16- 10.3 Independent Contractors Host and its personnel, in performance of this Agreement, are acting as independent contractors and not employees or agents of Client. 10.4 Amendments No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the Party against which such amendment, change, waiver, or discharge is sought to be enforced. 10.5 Client Identification Host may use the name of and identify Client as an Host client, in advertising, publicity, or similar materials distributed or displayed to prospective clients. 10.6 Force Majeure Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes. 10.7 California Law This Agreement shall be governed in all respects by the laws of the State of California -17- without regard to its conflict of laws provisions, and Client and Host agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the City of Los Angeles, and Client and Host hereby submit to the jurisdiction of such courts. 10.8 Assignment Client shall not assign, without the prior written consent of Host, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement. 10.9 Notice Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if mailed, __________ (__) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmission, upon electronic confirmation thereof, or (iv) if by next day delivery service, upon such delivery. All notices shall be addressed as follows (or such other address as either Party may in the furore specify in writing to the other): -18- In the case of Host: XYZ Corporation 2 Computer Way Los Angeles, CA Fax: (310) 555-5111 Attention: General Counsel In the case of Client: __________________________________________________________________Fax:__________________Attention:____________ 10.10 Waiver The waiver of failure of either Party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder. 10.11 Severability If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. 10.12 Counterparts This Agreement may be executed in several counterparts, all of which taken together shall constitute the entire agreement between the Parties hereto. -19- 10.13 Headings The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof. 10.14 Approvals and Similar Actions Where agreement, approval, acceptance, consent or similar action by either Party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. 10.15 Survival All provisions of this Agreement relating to Client warranties, confidentiality, non- disclosure, proprietary rights, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. CLIENT XYZ CORPORATION By:__________________ By:_______________________ (Signature) (Signature) Name:_________________ Name:_____________________ Title:________________ Title:____________________ Date:_________________ Date:_____________________