Software hosting services agreement

This website hosting agreement is between , an individual a(n) (the "Host") and , an individual a(n) (the "User").

The Host is engaged in the business of providing hosting and related services.

The User wants to retain the Host to perform the services provided for in this agreement.

The parties therefore agree as follows:

1. ENGAGEMENT; SERVICES.

The Host shall provide the services set forth in Exhibit A (the "Services"), as described in Exhibit B ("Service Level Agreement").

2. PRICE; PAYMENT.

• (a) Price. The User shall pay the Host for the Services according to the terms set forth in Exhibit A.
• (b) Invoices. The Host shall send an invoice every month in amounts equal to the fees listed in Exhibit A. Within 30 days of its receipt, the User shall pay each accurate and undisputed invoice.
• (c) Disputes. If the User disputes a particular invoice, the User shall pay the Host for the parts of the invoice that are accurate and not in dispute.
• (d) Price Changes. The Host may change prices annually after the Initial Term (as defined below) expires. However, increases in fees during a Renewal Term (as defined below) are limited to a % increase over the rates during the immediately preceding Term. The Host shall provide the User with at least days' notice before the price change will take effect (the "Price Change Notice Period"). If the User rejects the price change in writing during the Price Change Notice Period, this agreement will automatically terminate at the end of the term in which the Price Change Notice Period expires.

If the Host cannot provide the availability level indicated in the Service Level Agreement, and the User complies with its credit request procedures, the User shall receive a credit based upon the credit percentages in Exhibit B. The Host shall include any credit due under that agreement on the next invoice.

3. TERM; TERMINATION.

• (a) Term. This agreement will become effective as described in section 21 and continue for an initial term of year(s) (the "Initial Term"). Unless either party gives written notice to the other at least days before the end of the Term, this agreement will renew automatically for an additional -year term (each a "Renewal Term"). This automatic extension will continue to apply at the end of each Renewal Term until the agreement is terminated.
• (b) Termination Procedures. This agreement may be terminated:
  • (i) by either party, on provision of days' written notice before the end of a Term;
  • (ii) by either party for a material breach of any provision of this agreement by the other party, if the other party's material breach is not cured within 30 days of receipt of written notice;
  • (iii) by the User, immediately on written notice to the Host, if there is less than % uptime in any Services during any one-week period during any term (excluding scheduled maintenance); or
  • (iv) by the User, immediately on written notice to the Host, if there is a breach of the Host's security systems that results in the actual or potential unauthorized disclosure of the User's Content (as defined below.)
  • (i) the Host shall export and return any content then in its possession to the User at the User's expense, and the Host shall delete that content from the Host's servers and data storage devices, unless the User notifies the host in writing no more than 30 days after the termination of this agreement, of its desire to maintain the content on the Host's equipment. If the Host maintains this content, the Host shall make the content reasonably available to the User and the User shall pay the Host's customary rates for these services and reimburse Host for the cost of making the content available; and
  • (ii) the User shall promptly pay the Host according to the terms of Exhibit A for Services rendered before the effective date of the termination.

  4. CUSTOMER SERVICE.

  The Host shall consult with the User via telephone or electronic mail about how to use of the system on the terms set forth in the Service Level Agreement, but will not assist with any services not maintained or controlled by the Host as part of this Agreement. Third-party applications, mail-enabled printers/scanners, web services, and custom transport rules may be supported but will be scoped and billed separately.

  5. SECURITY; BACK-UP.

  • (a) Security. The Host shall locate all content on secure servers with limited access and required access authentication. The Host shall handle all content in accordance with industry best practices and the terms of this agreement.
  • (b) Back-Up. If the User requests, the Host shall restore content to the User using the Host's data back-ups. The Host shall maintain a copy of the past days of all content. The Host shall provide the User with the ability to self-restore any deleted mail item within the past days. The Host may provide backup support and data restoration beyond the above referenced period for a data recovery fee as outlined in Exhibit A.

  6. CONTENT.

  • (a) Content. The User represents that it is the owner or valid licensee of all data or content it will upload in connection with the Services (collectively, the "Content") and that it has secured all necessary licenses, consents, permissions, waivers, and releases for the use of the Content.
  • (b) The Host may use the intellectual property of the User to do the following, to the extent necessary to perform the Services:
    • (i) digitize, convert, install, upload, select, order, arrange, compile and synchronize, use, reproduce, store, process, retrieve, transmit, and hyperlink the Content; and
    • (ii) make archival or back-up copies of the Content.

    7. CONFIDENTIAL INFORMATION.

    • (a) Definition. "Confidential Information" means this agreement and all nonpublic information of the User, in whatever form, pertaining to the business of the User, including information relating to the User's finances, customer records, and information, and all associated documentation and materials that the User designates as being confidential when disclosing it to the Host or that, under the circumstances of disclosure, ought to be treated as confidential by the Host. Confidential Information also includes any information relating to the User's parent, subsidiaries, and affiliates. Confidential Information does not include information or data that is:
      • (i) known to the Host before its disclosure by the User without an obligation of confidentiality under another agreement;
      • (ii) independently developed by the Host without use of any Confidential Information;
      • (iii) in the public domain when the Host seeks to disclose or make use of it, other than as a result of disclosure by the Host; or
      • (iv) received by the Host from a third party with a legal or contractual right to disclose that information or data.

      8. NATURE OF RELATIONSHIP.

      The relationship of the parties under this agreement is one of independent contractors, and no joint venture, partnership, agency, employer-employee, or similar relationship is created in or by this agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of such authority.

      9. NO CONFLICT OF INTEREST; OTHER ACTIVITIES.

      During the Term, the Host may engage in other website hosting activities, except that the Host may not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Host's obligations or the scope of Services to be rendered for the User under this agreement.

      10. INDEMNIFICATION.

      • (a) Of User by Host. At all times after the effective date of this agreement, the Host shall indemnify the User against any award, charge, claim, compensatory damages, cost, damages, exemplary damages, diminution in value, expense, fee, fine, interest, judgment, liability, settlement payment, penalty, or other loss (a "Loss") or any attorney's or other professional's fee and disbursement, court filing fee, court cost, arbitration fee, arbitration cost, witness fee, and each other fee and cost of investigating and defending or asserting a claim for indemnification (a "Litigation Expense") arising out of:
        • (i) the Host's gross negligence or willful misconduct arising from the Host's carrying out of its obligations under this agreement; or
        • (ii) the Host's breach of any of its obligations or representations under this agreement.

        11. INTELLECTUAL PROPERTY.

        • (a) No Intellectual Property Infringement by Host. The Host warrants that the use and proposed use of any software, programs, or applications by the User or any third party to access the Website does not and shall not infringe, and the Host has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party. To the extent the software, programs, or applications used to access the Website infringe on the rights of any such third party, the Host shall obtain a license or consent from such third party permitting the use of such items.
        • (b) No Intellectual Property Infringement by User. The User represents to the Host and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by the User, or that the User has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Host and its subcontractors from any liability (including attorneys' fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the User. The User further represents to the Host that its domain names or URL listings do not infringe, dilute, or otherwise violate third-party rights or trademarks.
        • (c) Host Property Rights. All tools, know-how, and technology leased or licensed to the Host with respect to the hosting of the Website are the sole property of the Host, and the User has no ownership or other intellectual property rights in or to such items.
        • (d) User Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of the User, and the Host has no ownership or other intellectual property rights in or to such items.
        • (e) Nature of Website Content. The User shall not do any of the following:
          • (i) use the Services to transmit or post any material that contains or contains links to nudity, pornography, adult content, sex or extreme violence;
          • (ii) use the Services to transmit or post any material that violates any applicable local, state, national, or international law, or any rules or regulations promulgated under those;
          • (iii) use the Services to harm or attempt to harm minors in any way;
          • (iv) use the Services to transmit or post any material that harasses, threatens, or encourages bodily harm or destruction of property;
          • (v) use the Services to make fraudulent misrepresentations or offers, including offers relating to "pyramid schemes" and "Ponzi schemes";
          • (vi) use the Services to access, or attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of the Host or another entity's computer software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data;
          • (vii) use the Services to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other proprietary rights of any third party, including the unauthorized copying or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software;
          • (viii) use the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent;
          • (ix) resell the Services without the Host's prior written authorization; or
          • (x) use the Services for any activity that adversely affects the ability of other people or systems to use the Services or the Internet. This includes "denial of service" attacks against another network host or individual user. Interference with or disruption of other network users, network services, or network equipment is prohibited.

          12. GOVERNING LAW.

          • (a) Choice of Law. The laws of the state of govern this agreement (without giving effect to its conflicts of law principles).
          • (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .

          13. AMENDMENTS.

          No amendment to this agreement will be effective unless it is in writing and signed by both parties.

          14. ASSIGNMENT AND DELEGATION.

          • (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
          • (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
          • (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.

          15. COUNTERPARTS; ELECTRONIC SIGNATURES.

          • (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
          • (b) Electronic Signatures. This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.

          16. SEVERABILITY.

          If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.

          17. NOTICES.

          • (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
          • (b) Addresses. A party shall address notices under this section to a party at the following addresses:
          • If to the Host:
          • If to the User:
          • (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.

          18. WAIVER.

          No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.

          19. ENTIRE AGREEMENT.

          This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.

          20. HEADINGS.

          The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.

          21. EFFECTIVENESS.

          This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.

          22. NECESSARY ACTS; FURTHER ASSURANCES.

          Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.

          [SIGNATURE PAGE FOLLOWS]

          Each party is signing this agreement on the date stated opposite that party's signature.

          [PAGE BREAK HERE]
          EXHIBIT A
          Attach description of services and fees

          [PAGE BREAK HERE]
          EXHIBIT B
          SERVICE LEVEL AGREEMENT

          The Services are provided subject to the following terms, referred to as a "Service Level Agreement."

          1. HOST SERVICES AVAILABILITY.

          The Host shall use reasonable efforts to provide the Services at all times during the Term. However, from time to time Host services may be inaccessible or inoperable for any reason, including: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs that the Host may undertake; or (c) causes beyond the Host's control or that are not reasonably foreseeable by the Host. The Host shall provide as much advance notice as customary and reasonable for any unscheduled or emergency maintenance.

          2. 100% NETWORK UPTIME.

          • (a) Uptime Guarantee.
            • (i) The Host guarantees 100% availability of its network, excluding Excusable Downtime (as defined below).
            • (ii) Network uptime includes functioning of all Host network infrastructure including VPN, routers, switches, and cabling.
            • (iii) Network uptime does not apply to services or software running on a Host server or other Host hardware components.

            3. -HOUR REPLACEMENT GUARANTEE FOR HARDWARE FAILURE.

            • (a) -Hour Replacement Guarantee.
              • (i) The Host guarantees the functioning of all Managed Hosting hardware components and will replace any failed component at no cost to the User.
              • (ii) Managed Hosting hardware is defined as the server and server components, SAN storage, load balancer, firewall, and other related hardware included with the Managed Hosting server.
              • (iii) This guarantee excludes the time required to rebuild a RAID array and to reload operating systems and applications.
              • (i) Hardware failure downtime exists when a Hosting hardware component fails or stops working, and downtime is measured from the time User opens a trouble ticket with the Host and the Host identifies the cause of the hardware failure until the server hardware is powered on and on-line.
              • (ii) Hardware replacement is guaranteed to be complete within hours of the Host's problem cause identification.

              4. PUBLIC CLOUD HOSTING AND PRIVATE CLOUD HOSTING.

              • (a) Restoration or Repair Guarantee for Public and Private Cloud Hosts
                • (i) The Host guarantees the functioning of all Public and Private Cloud hosts including compute, storage, and hypervisor.
                • (ii) Public and Private Cloud Server Host downtime exists when a Host hardware component fails or stops working, and downtime is measured from the time User opens a trouble ticket with Host and Host identifies the cause of the hardware failure until the server hardware is powered on and on-line.
                • (iii) The Host guarantees that restoration or repair will be complete within hours of problem identification.
                • (iv) The Host guarantees the functioning of all Host hardware components and will replace any failed component at no cost to User.
                • (i) If a Public or Private Cloud migration is required, the Host will notify the User at least hours in advance of beginning the migration, unless the Host determines in its reasonable judgment, that the migration must happen sooner to protect Public or Private Cloud data.
                • (ii) The Host guarantees that the migration will be complete within hours of the time that Host begins the migration.

                5. DEDICATED HOSTING.

                • (a) -Hour Replacement Guarantee.
                  • (i) Host guarantees the functioning of all Host hardware components and will replace any failed component at no cost to User.
                  • (ii) Host hardware is defined as the server and server components, load balancer, firewall, and other related hardware included with or paid for with the Host server.
                  • (i) Hardware failure downtime exists when Host hardware component fails or stops working, and downtime is measured from the time the User opens a trouble ticket with Host, and the Host identifies the cause of the hardware failure until the server hardware is powered on and on-line.
                  • (ii) Hardware replacement is guaranteed to be complete within hours of Host problem cause identification.

                  6. SCHEDULED MAINTENANCE.

                  • (a) Accessibility of the Host web interface. During Scheduled Maintenance, the Host server might be available, but the User might not be able to access it.
                    • (i) Normal scheduled maintenance ("Normal Maintenance Window") occurs at least once a month. Scheduled maintenance may not always include downtime and the Host will use best efforts to communicate and minimize any downtime associated with any maintenance window to four hours or less. Any maintenance requiring downtime will be communicated in advance.
                    • (ii) The Normal Maintenance Window is subject to change at Host's reasonable discretion, and the new Normal Maintenance Window will become effective upon posting to Host's web interface(s) or email notification. The Host will limit any maintenance occurring during the time periods between Monday and Friday to occur between the hours of a.m. p.m. and a.m. p.m.

                    7. EMERGENCY MAINTENANCE.

                    • (a) The Host may perform emergency maintenance if there is an immediate, material threat to Host servers or the Host services.
                    • (b) The Host will attempt to notify the User by email before emergency maintenance, but notice depends upon the severity and critical nature of the emergency maintenance.
                    • (c) Emergency maintenance does not count as downtime and is not included in the uptime guarantee calculations.

                    8. HARDWARE REPLACEMENT.

                    The Host may replace hardware for any reason, at any time.

                    9. DOWNTIME EXCLUSIONS.

                    The unavailability of Host services due to the following will not be considered to be downtime (and credits will not be issued) ("Excusable Downtime"):

                    • (a) The User's applications and content, and errors from the User's own custom scripting or coding;
                    • (b) The User's configuration(s) outside of the Host infrastructure that affects Host services;
                    • (c) The User's acts or omissions;
                    • (d) Force majeure;
                    • (e) Services provided by a third party outside of the Host's control;
                    • (f) Maintenance during the Normal Maintenance Window or emergency maintenance (as described in section 7);
                    • (g) Downtime to install services User requests;
                    • (h) Internet traffic exchange points external to Host, including without limitation Network Access Points ("NAPs") and Metropolitan Area Exchanges ("MAEs"), and Internet networks controlled by others; or
                    • (i) Suspension of services (for example, if the User doesn't pay the Host).

                    10. CREDIT REQUEST AND LIMITATIONS.

                    • (a) To receive a credit, the User must open a trouble ticket for the problem, and contact a Host Service Representative via within days of the outage or failure and request a credit.
                    • (b) Multiple credits will not be paid for different types of outages occurring at the same time (no overlapping credits). There are no duplicate credits for the same outage, and the greater of the applicable credits will apply.
                    • (c) There is an overall cap on credits in a month. Credit in a month for a service cannot be more than 100% of the charges for the service for a month.

                    11. TROUBLE TICKETS.

                    A member of the Host's Network Operations Center Service Desk staff will be available to assist you with problems and questions regarding the hosting services. The Host will supply telephone or email support to you regarding the hosting services 24 hours a day, 7 days a week. If problem is determined to be non-hosting environment related a charge may be incurred at an hourly rate of .

                    • (a) User may open a trouble ticket using one of the following methods:
                      • (i) Call . Email . Text .
                      • (ii) Email . (ii) Text . (ii) Text .
                      • (iii) Text .

                      12. HOST WILL ONLY PAY CREDITS FOR DOWNTIME OR OUTAGES.

                      The Host is not liable for any damages the User claims to have suffered because of Host downtime or outages, including the unavailability of software, operating systems, applications, and data.

                      13. INTERNET BANDWIDTH.

                      • (a) Metered Bandwidth.
                        • (i) The User is charged based on the cumulative bandwidth usage each month.
                        • (ii) If bandwidth consumption is greater than the purchased amount, an overage charge is billed to the User.
                        • (i) Internet bandwidth is measured by taking samples of usage periodically minutes during a calendar month and collecting a fixed number of readings (cumulative of inbound feeds and cumulative of outbound feeds at the same measured point in time). The timing and number of readings will be set forth on an attached exhibit to this agreement.
                        • (ii) The measurements are stored and become data points. At the end of the month, all data points taken during the month are ranked in ascending order.
                        • (iii) The Host will discard a fixed percentage for each set (inbound and outbound) of data points. The percentage will be set forth on an attached exhibit to this agreement
                        • (iv) The highest remaining sample of t sets becomes the User's sustained (base) or burstable usage number for that billing cycle.
                        • (v) The User will be invoiced at the end of each month for burstable internet bandwidth usage, if any.