Hosted Services Agreement

HOSTED SERVICES AGREEMENT

This Hosted Services Agreement (the "Agreement") is entered into as of Effective Date: by and between Service Provider Name: , a with principal place of business at ("Provider"), and Client Name: , a with principal place of business at ("Client").

RECITALS

WHEREAS, Provider operates and maintains hosted computing infrastructure and applications and offers access to such hosted services to third parties under terms and conditions established by Provider; and

WHEREAS, Client desires to obtain from Provider certain hosted services and related support described in this Agreement, and Provider is willing to provide such services under the terms set forth herein; and

WHEREAS, the parties intend by this Agreement to allocate responsibilities, establish service levels, and define limitations of liability relating to the hosted services.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth below, the parties agree as follows:

1. DEFINITIONS

1.1 "Services" means the hosted computing services, applications, platform features and related functionality described in Exhibit A and any Documentation delivered by Provider to Client pursuant to this Agreement.

1.2 "Documentation" means Provider's published user guides, technical manuals and other written or electronic materials describing the features, operation and use of the Services.

1.3 "Client Data" means all electronic data, information or content submitted by Client or its End Users to the Services.

2. SERVICES

2.1 Provision. Provider shall host, operate and make available the Services to Client, and shall use commercially reasonable efforts to provide the Services in accordance with the Documentation and the Service Levels set forth in Section 3.

2.2 Changes. Provider may from time to time modify the Services, provided that material reductions in functionality shall not be made except upon written notice and a reasonable transition period or compensation as agreed by the parties.

3. SERVICE LEVELS; SUPPORT

3.1 Availability. Provider warrants that the Services will be available for use at least % of the time each calendar month, excluding scheduled maintenance and Force Majeure events.

3.2 Service Credits. If Provider fails to meet the Availability warranty, Client may request service credits as set forth in Exhibit B by submitting a written claim in accordance with the credit claim procedure. Service credits are Client's sole and exclusive remedy for any failure to meet Availability.

4. FEES AND PAYMENT

4.1 Fees. Client shall pay Provider the fees set forth in Exhibit C. Unless otherwise specified, fees are payable in U.S. dollars within days of invoice date. Late payments bear interest at the lesser of 1.5% per month or the maximum permitted by law.

4.2 Taxes. All payments due hereunder are exclusive of taxes. Client shall be responsible for all sales, use, value added and other taxes (other than taxes based on Provider's net income).

5. TERM AND TERMINATION

5.1 Term. The initial term of this Agreement shall commence on the Effective Date and continue for a period of months (the "Initial Term"). Thereafter this Agreement will automatically renew for successive one (1) year periods unless either party provides written notice of non-renewal at least days prior to the end of the then-current term.

5.2 Termination for Cause. Either party may terminate this Agreement (a) for material breach by the other party that remains uncured thirty (30) days after written notice, or (b) upon the other party's insolvency or bankruptcy proceedings.

6. DATA SECURITY; PRIVACY

6.1 Security Controls. Provider shall maintain administrative, physical and technical safeguards consistent with industry standards to protect Client Data against unauthorized access, disclosure, alteration and destruction.

6.2 Breach Notification. In the event of a confirmed unauthorized access to Client Data, Provider shall notify Client promptly and in no event later than hours after discovery and shall cooperate with Client in mitigation and regulatory reporting as required by applicable law.

7. INTELLECTUAL PROPERTY

7.1 Provider IP. Provider retains all right, title and interest in and to the Services, Documentation and any enhancements or derivatives. No rights in Provider IP are granted to Client except for the limited, non-exclusive, non-transferable license to access and use the Services during the Term subject to this Agreement.

7.2 Client Data. Client retains all right, title and interest in Client Data. Provider shall have the limited rights to process Client Data as necessary to provide the Services and for Provider's internal operational purposes.

8. CONFIDENTIALITY

8.1 Confidential Information. "Confidential Information" means non-public information disclosed by one party to the other in any form that is designated as confidential or that a reasonable person would understand to be confidential under the circumstances.

8.2 Obligations. The receiving party shall not disclose Confidential Information except to employees, contractors and advisors with a need to know and who are bound by confidentiality obligations no less restrictive than those herein. Confidential Information shall be held in confidence for a period of years following disclosure, except for trade secrets which shall be protected for so long as they qualify as trade secrets.

9. WARRANTIES; DISCLAIMER

9.1 Limited Warranty. Provider warrants that, during the Term, the Services will materially conform to the Documentation. Client's sole remedy for breach of this warranty shall be re-performance by Provider or a pro rata refund of prepaid fees for the affected Service.

9.2 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 9.1, THE SERVICES ARE PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

10. INDEMNIFICATION

10.1 Provider Indemnity. Provider shall defend, indemnify and hold Client harmless from and against third-party claims alleging that the Services infringe a third party's U.S. patents, copyrights or trade secrets; provided that Client promptly notifies Provider in writing of any claim and cooperates in the defense.

10.2 Client Indemnity. Client shall indemnify and hold Provider harmless from third-party claims arising from Client Data, Client's misuse of the Services, or Client's violation of law.

11. LIMITATION OF LIABILITY

11.1 Cap. EXCEPT FOR LIABILITY ARISING FROM A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY, AND SUBJECT TO APPLICABLE LAW, EACH PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

11.2 Exclusion of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. COMPLIANCE; EXPORT

Each party shall comply with applicable laws in connection with its performance under this Agreement. Client shall not permit the Services to be used in violation of export control laws or to process data subject to export restrictions without Provider's prior written consent.

13. NOTICES

Notices under this Agreement shall be in writing and delivered to the party's notice address. Notice to Provider: . Notice to Client: . Notices are effective upon receipt.

14. ASSIGNMENT

Neither party may assign this Agreement without the prior written consent of the other, except that either party may assign 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.

15. AUDIT RIGHTS

Provider may audit Client's use of the Services to confirm compliance with this Agreement upon reasonable prior notice and during normal business hours. Any such audit shall be conducted in a manner that does not unreasonably interfere with Client's business operations.

16. AMENDMENT; WAIVER

No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. The failure of either party to enforce any right shall not constitute a waiver of that right.

17. 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.

18. ENTIRE AGREEMENT

This Agreement, together with all Exhibits and any applicable Order Forms, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether oral or written.

19. SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect and the parties shall negotiate in good faith a substitute provision that preserves the parties' intent.

20. COUNTERPARTS; ELECTRONIC SIGNATURES

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Electronic signatures and delivery of executed counterparts by facsimile or electronic transmission shall be binding.

Sign Now