Company will provide Buyer with hosting services (“Hosting Services”) at the Software installed on Company’s servers (the “Company System”).
During the term of this Contract, Buyer may obtain information (“Reports”) regarding Buyer’s use of the Software and the quantity and handling of Online Messages routed to the Corporation System by accessing the Corporation System through a password-protected Web site made available by Company. Buyer shall be responsible for maintaining the confidentiality of such passwords and shall permit only authorized employees of Buyer to access the Company System. The Hosting Services and the hosting fees do not include any deployment, training or other consulting or professional services which, if applicable, will be specified in a Statement of Work, signed by both parties, and incorporated herein by this reference.
4.1. Buyer Support
The Company provides a hosting service managed by the Company in all of our products, for the exclusive use for needs and objectives of each plan. If the Buyer needs to enter to the Company System, the Buyer need request the username and the password to access at the Corporation System in write, and if the Buyer requires support, the Company will provide live telephone support to Buyer 4 hours a day, 5 days a week by a trained Company in customer support representative.
4.2. Buyer’s Responsibilities
Buyer agrees that it shall be responsible for providing and maintaining its own Internet access and all necessary telecommunications equipment, software and other materials (“Buyer Equipment”) at Buyer’s location necessary for accessing the Software and the Company System through the Internet. Buyer agrees to notify Company of any changes in the Buyer Equipment, including any system configuration changes or any hardware or software upgrades, which may affect the Hosting Services provided hereunder. The Company System is only to be used for lawful purposes. Buyer agrees not to transmit, re-transmit or store materials on or through the Company System or the Software that are harmful to the Company System or Software, or in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others.
To the extent that certain components of the Software may be downloaded to Buyer’s or User’s computer as a result of accessing the Software as part of the Hosting Services, Company grants Buyer a non-exclusive, non-transferable, limited license, with right to sublicense solely to Users, to use such Software only in connection with the Hosting Services. Neither Buyer nor Users are otherwise permitted to use the Software, nor will Buyer or Users disassemble, decompile or otherwise attempt to discern the source code of such Software. Buyer agrees that, except as expressly set forth in this Section, it will not rent, lease, sublicense, re-sell, time-share or otherwise assign to any third party this Contract or any of Buyer’s rights or licenses to access the Software or the Corporation System, nor shall Customer use, or authorize others to use, the Software, Hosting Services or the Corporation System to operate a service bureau. Notwithstanding the preceding sentence, Buyer shall be permitted to provide access to the Company System to its employees and agents located worldwide.
4.3. Proprietary Rights
Except for the limited access right granted to Buyer in this Contract, all right, title and interest in and to the Software (including any and all modifications as a result of any implementation services rendered) and the Company System are and shall remain the exclusive property of Company and its licensors. Company acknowledges and agrees that the Online Messages are the property of Buyer and that Company has only a limited right to use the Online Messages as set forth in the following sentence. Notwithstanding the foregoing, Company may access and disclose the Online Messages solely as necessary to provide the Hosting Services, to operate and maintain its systems, to comply with applicable laws and government orders and requests, and to protect itself and its Buyers.
4.4. Pricing And Payment
Buyer agrees to pay the fees and other charges for the Hosting Services and other services provided under this Contract Included in the monthly payment of the plan acquired by the buyer. BUYER AGREES TO PAY FOR HOSTING SERVICES ON OR BEFORE THE 30 DAY OF THE MONTH IN WHICH THE HOSTING SERVICES ARE PROVIDED. All amounts payable hereunder are exclusive of any and all taxes, and Buyer is responsible for payment of such taxes (excluding taxes based on Company’s net income).
4.5. Limited Warranties; Disclaimer Of Warranties
4.5.1. Company warrants and represents to Buyer that (i) the Software will perform substantially in accordance with the documentation, if any, provided by Company to Buyer, and (ii) the Hosting Services will be performed in a professional and workmanlike manner and in accordance with the introduction of the section. In the event of Downtime (as defined in this Section below), as Customer’s sole and exclusive remedy and Corporation’s sole and exclusive liability, the monthly fee payable for the Hosting Services shall be reduced as follows:
a) For the first 60 minutes of Downtime during Normal Business Hours or the first 3 hours of Downtime outside of Normal Business Hours (“Initial Downtime”), Company will credit Buyer’s account for 1 day of service.
b) For each 2 hours period of Downtime per day in addition to the Initial Downtime, Company will credit Buyer’s account for 1 additional day of service.
For the purposes of this Contract, “Downtime” shall mean any interruption in the availability of Hosting Services to Customer (excluding scheduled interruptions of which Customer is notified 48 hours in advanced), only if such interruption is due either to:
c) an error in the Software, or
d) failure of the Company System (but not including problems associated with Internet connectivity). Downtime begins upon Buyer notification to Buyer of the interruption, either by speaking directly with a Company customer service representative or recording a voice mail message in the Company customer service voice mail box, and continues until the availability of the Hosting Services is restored to the Buyer. For purposes of this Agreement, “Normal Business Hours” shall mean between the hours of 9:00 to 17:00 Eastern Daylight Time, EDT, and Monday through Friday excluding national holidays.
In the event of a breach (other than Downtime) of the warranty set forth in Section 4.5 (i) above, Buyer’s sole and exclusive remedy, and Company’s sole and exclusive liability shall be, at Company’s option, repair or replacement of the Software.
THE FOREGOING CONSTITUTES BUYER’S SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S ENTIRE LIABILITY, FOR DOWNTIME AND FOR BREACH OF THE HOSTING SERVICES WARRANTY PROVIDED IN THIS SECTION
4.5.2. Company represents and warrants that, prior to, during and after the calendar year 2016, the Software and the Company System will process, calculate, manipulate, sort, store and transfer date data without material error or material performance degradation, including without limitation date data which represents or references different centuries or more than one century (such representation and warranty being referred to as “Year 2016 Compliant”).
In the event that the Software or Company System is not Year 2016 Compliant, Buyer’s sole and exclusive remedy and Company’s sole and exclusive liability shall be for Company, at no additional cost to Buyer, to promptly modify the Software or the Company System so that the Software or Company System is Year 2016 Compliant.
The foregoing warranty is conditioned upon the Buyer using the Software and/or the Company System in accordance with its applicable Documentation, and on other software, hardware, network and systems (other than the Software and the Company System) with which the Software and/or the Company System interface or interoperate also being Year 2016 Compliant.
4.5.3. EXCEPT AS PROVIDED IN SECTIONS 4.5.1. – 4.5.2., (A) THE HOSTING SERVICES ARE PROVIDED, AND THE SOFTWARE AND THE COMPANY SYSTEM ARE MADE AVAILABLE, BY COMPANY TO BUYER “AS IS,” AND (B) COMPANY AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE HOSTING SERVICES, THE SOFTWARE OR THE COMPANY SYSTEM, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
4.5.4. Without limiting the express warranties set forth in this Agreement, Company does not warrant that the Software, the Company System or the Hosting Services will meet Buyer’s requirements (except as provided in Section 4.5.1.) or that Buyer’s access to and use of the Software, the Company System or the Hosting Services will be uninterrupted or free of errors or omissions. Company cannot and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to, the Internet. Company will use commercially reasonable efforts to adequately maintain, and upgrade as necessary, the Company System to provide the Hosting Services to its Buyers. However, except as expressly set forth herein, Company shall not be responsible for any delays, errors, failures to perform, or disruptions in the Hosting Services caused by or resulting from any act, omission or condition beyond Company’s reasonable control.
4.6. Limitation Of Liability
EXCLUDING LIABILITY FOR INFRINGEMENT CLAIMS AS DISCUSSED IN THIS CONTRACT, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Company’s entire liability under this Contract for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, shall in no event exceed an amount equal to the price paid for the Services out of which the claim arose.
4.7. Confidential Information
Each party agrees to keep confidential and to use only for purposes of performing (or as otherwise permitted under) this Contract, any proprietary or confidential information of the other party disclosed pursuant to this Contract which is marked as confidential or which would reasonably be considered of a confidential nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed. Upon any termination of this Contract, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Contract.
Subject to the limitations set forth in this Section, Company will defend any third-party suit or action against Buyer to the extent such suit or action is based on a claim that the Software or the Company System infringes any valid United States patent, copyright, trade secret or other proprietary right, and Company will pay those damages and costs finally awarded against Buyer in any monetary settlement of such suit or action which are specifically attributable to such claim.
These obligations do not include any claims to the extent they are based on use of the Software or Company System in violation of this Contract or in combination with any other software or hardware, or any modification to the Software or Company System pursuant to Buyer’s specifications. If any portion of the Software or Company System becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, then Company may, at its option and expense,
a) procure for Buyer the right to continue using such Software or the Company System, or replace or modify the Software or the Company System so that it becomes non-infringing. The indemnity obligations set forth in this Section are contingent upon:
- Buyer giving prompt written notice to the Company of any such claim(s);
- Company having sole control of the defense or settlement of the claim; and
- at Company’s request and expense, Buyer cooperating in the investigation and defense of such claim(s). THE FOREGOING STATES COMPANY’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
4.9. Term And Termination
4.9.1. Term and Termination
This Contract shall continue in effect from the Effective Date for a 1 year period, unless earlier terminated as set forth below, and thereafter shall renew automatically for successive 1 year periods unless either party gives the other party at least 30 days prior written notice of its intent not to renew the Contract. In addition, either party may terminate this Contract by giving to the other party written notice of such termination upon the other party’s material breach of any material term (subject to the other party’s right to cure within 5 days after receipt of such notice), the other party’s insolvency, or the institution of any bankruptcy or similar proceedings by or against the other party.
4.9.2. Effect of Termination
Upon any termination of this Contract, Company shall immediately cease providing all Hosting Services, and Buyer shall no longer have access to the Software or the Company System. Except in the event of termination for Buyer’s breach, Company shall provide Buyer with an electronic copy of the final Reports (covering the month just prior to termination of this Contract). Company shall be entitled to retain a copy (whether electronic or otherwise) of the Online Messages and the Reports for its records and internal purposes and shall not disclose such Online Messages or Reports to any third party except as permitted under Section 4.3. Within 15 days of any termination of this Contract, Buyer shall pay to Company all unpaid fees accrued prior to termination. Sections 4.3, 4.4 (as to amounts accrued but unpaid), 4.6, and 4.7., shall survive any expiration or termination of this Contract.