Hosting Services Agreement

HOSTING SERVICES AGREEMENT

This Hosting Services Agreement ("Agreement") is entered into as of by and between Provider Name: , a organized under the laws of , with principal place of business at , and Client Name: , with principal place of business at .

RECITALS

WHEREAS, Provider operates and maintains hosted computing infrastructure, platform and related services suitable for the hosting, storage and transmission of Client data and applications; and

WHEREAS, Client desires to engage Provider to host certain applications, data and content, and Provider agrees to provide such hosting services under the terms and conditions set forth herein; and

WHEREAS, the parties intend for this Agreement to define the rights and obligations of each party with respect to the provision and receipt of hosting and related services.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1 "Services" means the hosting, managed platform, monitoring, maintenance and ancillary services described in Exhibit A and in Section 2 below. 1.2 "Client Data" means all electronic data and information provided by Client to Provider for use in connection with the Services. 1.3 "Service Level" means the availability and support commitments set forth in Section 4.

2. SERVICES

2.1 Scope. Provider shall provide the Services described in the Service Description below and in any Statement of Work executed by the parties. Provider shall use commercially reasonable efforts to perform the Services in a professional manner consistent with industry standards.

2.2 Changes. Changes to the Services shall be effected only by written change order signed by authorized representatives of both parties. Any change in Fees, schedule or Service Levels resulting from a change order shall be documented and agreed in writing prior to implementation.

3. TERM AND TERMINATION

3.1 Term. The initial term of this Agreement shall be commencing on the Effective Date, and shall automatically renew for successive terms of the same length unless either party gives written notice of non-renewal at least days prior to the expiration of the then-current term.

3.2 Termination for Cause. Either party may terminate this Agreement for material breach by the other party that remains uncured for days after written notice specifying the breach. Termination shall be without prejudice to any accrued rights or remedies.

3.3 Termination for Insolvency. Either party may terminate immediately upon written notice if the other party becomes insolvent, subject to applicable insolvency laws.

4. SERVICE LEVELS

4.1 Availability. Provider warrants that the Services will have an availability of at least % per calendar month, excluding scheduled maintenance and force majeure events.

4.2 Support and Response Times. Provider shall provide support in accordance with the following response targets: Critical incidents — initial response within hour(s); High — within hour(s); Normal — within hours.

4.3 Service Credits. If Provider fails to meet the Availability warranty, Client's sole and exclusive remedy shall be service credits calculated as a percentage of the monthly fees for the affected month, as set forth in Exhibit B.

5. FEES AND PAYMENT

5.1 Fees. Client shall pay Provider the fees set forth in the applicable Order Form or Statement of Work. Initial setup fee: . Recurring fee: per .

5.2 Payment Terms. Invoices are due within days of invoice. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum legal rate.

6. DATA SECURITY AND PRIVACY

6.1 Data Protection. Provider shall implement and maintain administrative, physical and technical safeguards appropriate to the nature of the Client Data to protect against unauthorized access, disclosure, alteration or destruction. Such safeguards shall include encryption of Client Data in transit and at rest where reasonably practicable.

6.2 Backup and Retention. Provider shall perform backups in accordance with the backup schedule set forth in Exhibit C and shall retain backup copies for at least days unless otherwise agreed in writing.

6.3 Security Incidents. Provider shall notify Client without undue delay and in any event within hours after becoming aware of a confirmed security breach affecting Client Data and shall cooperate in mitigation and remediation activities.

7. INTELLECTUAL PROPERTY

7.1 Ownership. Client retains all right, title and interest in and to Client Data. Provider retains all right, title and interest in and to the hosting platform, software, tools, improvements and other intellectual property used or developed by Provider in providing the Services, including any general skills, know-how or techniques.

7.2 License. Provider grants Client a non-exclusive, non-transferable license to use the Services for Client's internal business purposes during the Term. Client grants Provider a limited license to process Client Data solely to provide the Services and as otherwise permitted by this Agreement.

8. CONFIDENTIALITY

8.1 Confidential Information. "Confidential Information" means non-public information disclosed by a party that is designated confidential or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure.

8.2 Obligations. The recipient shall (a) use Confidential Information only to perform its obligations under this Agreement, (b) restrict disclosure to employees and contractors with a need to know, and (c) protect Confidential Information from unauthorized use and disclosure with at least the same degree of care as it uses to protect its own confidential information, but in no event less than reasonable care. Confidentiality obligations shall survive termination for a period of years.

9. WARRANTIES; DISCLAIMER

9.1 Provider Warranty. Provider warrants that it will perform the Services in a professional and workmanlike manner consistent with generally accepted industry standards and will materially conform to the Service Description. For any breach of this limited warranty, Client's exclusive remedy is re-performance of the defective Service or, if Provider fails to re-perform within a commercially reasonable time, a refund of fees paid for the deficient Service during the period of breach.

9.2 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, THE SERVICES ARE PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

10. LIMITATION OF LIABILITY

10.1 Exclusion of Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Cap on Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS OR A PARTY'S LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE MONTHS PRECEDING THE CLAIM.

11. INDEMNIFICATION

11.1 Provider Indemnity. Provider shall defend and indemnify Client against any third-party claim that the Services, as delivered by Provider, infringe a third party's patent, copyright or trademark, provided that Client gives prompt written notice, allows Provider control of the defense and cooperates in the defense. Provider's obligations do not apply to Client Data, Client's specifications, or modifications made by parties other than Provider.

11.2 Client Indemnity. Client shall defend and indemnify Provider against any third-party claim arising from Client Data, Client's content or Client's use of the Services in violation of this Agreement.

12. TRANSITION; DATA RETURN

12.1 Transition Assistance. Upon termination or expiration, Provider shall, at Client's written request, provide reasonable transition assistance to migrate Client Data to a successor provider for a period of days and shall be entitled to charge its then-current rates for such assistance.

12.2 Data Return and Deletion. Upon expiration of the Transition Assistance period and unless otherwise agreed, Provider shall securely delete or destroy Client Data in Provider's possession in accordance with Provider's standard procedures.

13. NOTICES

13.1 Manner. All notices shall be in writing and delivered by certified mail, nationally recognized overnight courier, or email to the addresses set forth below (email notices shall be effective upon receipt if confirmation of delivery is generated).

14. MISCELLANEOUS

14.1 Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except that Provider may assign this Agreement in connection with a merger, sale of substantially all assets or change of control.

14.2 Amendments. No amendment or modification of this Agreement shall be effective unless in writing and signed by duly authorized representatives of both parties.

14.3 Waiver. A waiver of any right or remedy under this Agreement must be in writing. The failure to exercise any right shall not operate as a waiver of that or any other right.

14.4 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument. Signatures delivered by electronic means shall be treated as originals.

14.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to conflict of laws principles.

14.6 Entire Agreement. This Agreement, together with all exhibits, schedules and Statements of Work, 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.

14.7 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall continue in full force and effect and the parties shall negotiate in good faith to replace the invalid provision with a valid provision that most closely approximates the parties' original intent.

EXHIBITS AND SCOPE

Sign Now