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TYS
Virtual Hosting Agreement
THIS AGREEMENT is
entered into as of ("Effective Date"), by and between TYS, email:
support@trainyardsoftware.com ("TYS"), and ("Client").
TYS's Obligation is
to Provide Web Hosting Services
- TYS shall provide,
configure, troubleshoot, and maintain Web Server(s), Web Server
Platform, Web Server Tools, and the Services specified: including
cabling and termination devices necessary to support access to the
Internet.
- TYS undertake its
best efforts to provide an Internet connection and access to the
Client Web Site(s) twenty four (24) hours per day, seven (7) days
per week, during the term of the applicable contract.
Client's Obligations
Client shall
comply with all of the terms of this Agreement, including, but not
limited to, the Acceptable Use Policy attached to as Schedule 1 (the
"Use Policy"), as the Use Policy may be modified from time to time.
Upon notice from TYS, Client promptly shall eliminate any hazard,
interference or service obstruction that any hardware or software used
by Client, whether or not provided by TYS ("Client Materials"), is
causing, or is likely to cause. If Client requests TYS to assist it in
removing any hazards, interference or service obstruction that Client
Materials are causing or are likely to cause, TYS may, but is not
required to, assist in such removal. The charges for TYS's services in
connection with such assistance shall be at TYS's rates for T&M
Services as specified in the applicable Work Order. In the event that
the primary function(s) of Client's Web Site(s) are impaired during
non-business hours or holidays, and TYS has been unable to
successfully locate and/or contact an authorized representative of
Client, TYS may take reasonable steps to restore the functionality of
Client's Web Site without prior Client approval. Any necessary work
that is performed by TYS to restore functionality that was impaired by
Client design flaws or errors shall be billable to Client at TYS's
rates for T&M Services as specified in the applicable Work Order.
Agreements With
Employees And Contractors
TYS shall obtain written agreements with each of its employees or
contractors who participate in any of the Services under any Work
Order which shall provide terms sufficient for TYS (i) to comply with
all provisions of this Agreement and all Work Orders, and (ii) to
support any confidentiality obligations of TYS hereunder.
Mutual Exchange of
Confidential Information
The parties anticipate that each may disclose confidential
information to the other. Accordingly, the parties desire to establish
in this Section terms governing the use and protection of certain
information one party ("Owner") may disclose to the other party
("Recipient"). For purposes hereof, "Confidential Information" means
the terms and conditions hereof, and other information of an Owner (i)
which relates to the purpose and subject matter of the Services,
including the business models and plans of Owner and Owner's plans for
the design of a Web Site, or (ii) which, although not related to the
Services, is nevertheless disclosed hereunder, and which, in any case,
is disclosed by an Owner or an affiliate to Recipient in document or
other tangible form bearing an appropriate legend indicating its
confidential or proprietary nature, or which, if initially disclosed
orally or visually is identified as confidential at the time of
disclosure and a written summary hereof, also marked with such a
legend, is provided to Recipient within fifteen (15) days of the
initial disclosure. Recipient may use Confidential Information of
Owner only for the purposes of this Agreement and shall protect such
Confidential Information from disclosure to others, using the same
degree of care used to protect its own proprietary information of like
importance, but in any case using no less than a reasonable degree of
care. Recipient may disclose Confidential Information received
hereunder only as reasonably required to perform its obligations under
this Agreement and only to its employees who have a need to know for
such purposes and who are bound by signed, written agreements to
protect the received Confidential Information from unauthorized use
and disclosure. The restrictions of this Agreement on use and
disclosure of Confidential Information shall not apply to information
that: (i) is in the possession or control of Recipient at the time of
its disclosure hereunder; (ii) is, or becomes publicly known, through
no wrongful act of Recipient; (iii) is received by Recipient from a
third party free to disclose it without obligation to Owner; or (iv)
is independently developed by Recipient without reference to
Confidential Information.
Ownership and
License of Proprietary Rights
License. All computer programs and other technology utilized by
TYS to provide the Services hereunder is owned by TYS and its
licensors, and Client does not acquire any ownership interest therein.
TYS hereby grants to Client a non-exclusive right to use all
Proprietary Rights embodied within computer programs and other
technology solely for the purpose described herein and for no other
purpose or use. Client shall not (i) tamper with, copy, merge,
decompile, or disassemble the any such computer programs and other
technology, (ii) nor shall Client disclose, share, or transmit any
identification or password code provided by TYS with any third party
without the express written consent of TYS.
Charges
Client shall pay to TYS fees for Services and other payments
specified in this Section ("Charges") in accordance with this
Agreement for $____ a month. Charges shall commence to accrue on the
date that TYS provides access codes to Client ("Operational Date").
All payments for Charges shall be made in U.S. Dollars. Client may
pre-pay the Charges for the entire term, quarterly increments, or the
client may pay the Charges on a monthly basis. Charges shall be
invoiced to Client in advance at the beginning of the month. Any
additional charges, including without limitation, any early
cancellation charges, accrued interest, and late fees, shall be
invoiced in arrears and shall appear on the monthly invoices for
Services or separate invoices. In all cases, payments for Charges are
due upon receipt by Client of the invoices for such Charges. In
addition to any other remedies that may be available to TYS under this
Agreement (including without limitation, in connection with the
termination of this Agreement) or applicable law, Charges that are not
paid in full fifteen (15) days after receipt by Client of the invoice
therefore (a "Payment Default") will be subject to interest charges of
the lesser of one and one-half percent (1.5%) per month or portion
thereof and the highest amount permitted by law, which interest shall
accrue daily. Client shall be liable for all amounts payable to TYS
hereunder, and all such payment obligations shall survive the
expiration or termination hereof. Client also shall pay to TYS all
expenses incurred by TYS in exercising any of its rights under this
Agreement or applicable law with respect to the collection of a
Payment Default, including without limitation, reasonable attorneys'
fees and the fees of any collection agency retained by TYS.
Taxes
Client shall be liable for, and shall reimburse TYS and indemnify
and hold TYS harmless from all local, state, federal and non-United
States taxes or similar assessments or charges (including any interest
and penalties imposed thereon), other than taxes based on the net
income of TYS, arising out of, or relating to this Agreement or the
sale of the Services hereunder.
Pass Through Items
and Other Expenses
TYS will have the right at any time during any term of this
Agreement to pass through and invoice to Client any new or increased
fees, assessments, taxes or other charges imposed on or required to be
collected by TYS by any governmental agency or any new or increased
charges by any carrier that affect TYS's costs in providing Services
to Client. Client also will be responsible for paying any sales,
license and use taxes, fees, or assessments levied by any local, state
or federal government or governmental agency with respect to the
provision of Services under this Agreement. Client will pay and be
solely responsible for all taxes, fees and charges levied directly
upon it.
Purchase Orders
Notwithstanding the content of any purchase order issued by
Client, this Agreement shall take precedence over such purchase order,
and any conflicting, inconsistent, or additional terms of Client's
purchase order shall be null and void.
Scheduled
Maintenance
TYS designates time periods ("Scheduled Maintenance Windows")
during which it may limit or suspend the availability of the hardware
and/or software involved in providing its Services (an "Outage") to
perform necessary maintenance or upgrades. Scheduled Maintenance
Windows currently are each Saturday between the hours of 1 am and 4 am
Eastern Time. If planned maintenance has the possibility of making the
server or servers, as the case may be, utilized by Client inaccessible
to the Internet during a Scheduled Maintenance Window, TYS will
provide not less than twenty-four (24) hours prior electronic mail or
other notice to Client of the Scheduled Maintenance Window during
which the Outage is planned. In addition, TYS reserves the right to
perform any required maintenance work outside of the Scheduled
Maintenance Window with prior notice to Client.
Disclaimer;
Limitation of Liability
The parties acknowledge that the limitations set forth herein are
integral to the amount of fees levied in connection with this
Agreement, and that, were TYS to assume any further liability other
than as set forth herein, such fees would of necessity be set
substantially higher. TYS does not monitor or exercise control over
the content of the information transmitted through its facilities. Use
of the Services or any information that may be obtained therefrom is
at Client's own risk. TYS shall have no responsibility or liability
for the accuracy or quality of information obtained through its
Services. TYS shall not be deemed to be in default of any provision of
this Agreement or be liable for any delay, failure of performance or
interruption of the provision of Services to Client resulting,
directly or indirectly, from any (i) weather conditions, natural
disasters or other acts of God, (ii) action of any governmental or
military authority, (iii) failure caused by telecommunication or other
Internet provider, or (iv) other force or occurrence beyond its
control. The exclusive remedy against TYS for any damages whatsoever
to Client arising out of or related to this Agreement shall be the
refund of the fees paid by Client to TYS with respect to the then
current term of this Agreement. TYS SHALL NOT BE LIABLE FOR (i) ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY
LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE
SERVICES BY CLIENT OR ANY THIRD PARTIES EVEN IF TYS HAS BEEN ADVISED
OF THE POSSIBILITY THEREOF, OR (ii) ANY LOSS OF DATA RESULTING FROM
DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICE INTERRUPTIONS. TYS
PROVIDES THE SERVICES "AS IS", WITHOUT WARRANTY OF ANY KIND, WHETHER
EXPRESS OR IMPLIED. TYS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. CLIENT SHALL BE SOLELY RESPONSIBLE
FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND TYS SHALL
HAVE NO LIABILITY THEREFORE. The limitations of liability provided
herein shall inure to the benefit of TYS and all TYS Affiliates and to
all of the respective officers, directors, attorneys, employees and
agents of TYS and such other entities ("Limited Liability Parties").
The limitations of liability afforded TYS in this Agreement shall
apply whether (i) the action in which recovery is sought is based in
contract, tort (including without limitation, negligence or strict
liability), statute or otherwise or (ii) a Limited Liability Party is
alleged to be liable jointly with one or more parties or otherwise.
Disclaimer of TYS
Liability For Client Materials
Neither TYS nor any of its officers, directors, employees, and
agents shall be liable for any damage or destruction of equipment or
other materials belonging to, leased by, or otherwise under the
control of Client, whether or not any such equipment or materials are
at any time located in facilities owned or operated by TYS, except
where such damage or destruction is a direct result of the gross
negligence, recklessness or willful misconduct of TYS or any of its
officers, directors, employees, and agents.
Damage To TYS
Property
During any time period when Client is provided access to any
facilities, hardware or other property owned or leased by, or
otherwise under the control of TYS (collectively "TYS Property")
pursuant to this Agreement, Client shall (i) maintain insurance, with
TYS as a named payee, covering any damage or destruction to TYS
Property (collectively "Damage") and (ii) reimburse TYS for all
expenses incurred by TYS in replacing or repairing, as the case may
be, any Damage caused by Client.
Damage To Client
Materials
Neither TYS nor any of its officers, directors, employees, and
agents shall be liable for any damage or destruction of equipment or
other materials belonging to, leased by, or otherwise under the
control of Client, whether or not any such equipment or materials are
at any time located in facilities owned or operated by TYS, except
where such damage or destruction is a direct result of the gross
negligence, recklessness or willful misconduct of TYS or any of its
officers, directors, employees, and agents.
Indemnity By Client
Client shall defend, indemnify, and hold TYS harmless, and each
TYS affiliate and the officers, directors, employees and agents of TYS
and each TYS affiliate (each an "Indemnified Party") against any
losses, claims, damages, liabilities, penalties, actions, proceedings
or judgments (collectively, "Losses") to which an Indemnified Party
may become subject and which Losses arise out of, or relate to this
Agreement or Client's use of the Services, and will reimburse an
Indemnified Party for all legal and other expenses, including
reasonable attorneys' fees incurred by such Indemnified Party in
connection with investigating, defending or settling any Loss whether
or not in connection with pending or threatened litigation in which
such Indemnified Party is a party.
Term Of Agreement
The initial term of this Agreement shall commence as of the
Effective Date hereof and shall continue for a period of One (1) year.
The initial term hereof shall automatically renew for successive one
(1) year terms unless either party notifies the other in writing not
less than thirty (30) days prior to the expiration of the current term
of its intention not to renew. Both the initial term and any renewal
term are subject to earlier termination as otherwise provided herein.
Either party may choose not to renew this Agreement without cause for
any reason. After the expiration or termination of this Agreement, any
existing Work Order then still in effect shall continue unaffected and
in full force and effect unless otherwise terminated as provided
herein or in such Work Order.
Automatic
Termination
Unless TYS promptly after discovery of the relevant facts notifies
Client to the contrary in writing, this Agreement and all Work Orders
will terminate immediately without notice upon the institution of
insolvency, bankruptcy, or similar proceedings by or against TYS, any
assignment or attempted assignment by TYS for the benefit of
creditors, or any appointment, or application for such appointment, of
a receiver for TYS.
Termination For
Cause
If either party fails to comply with any of the material terms and
conditions of this Agreement or Work Order, the other party may
terminate this Agreement and/or any or all Work Orders upon fifteen
(15) days' written notice to the defaulting party specifying any such
breach, unless within the period of such notice, all breaches
specified therein shall have been remedied.
Rights and
Obligations on Termination
Upon termination of this Agreement, TYS and Client shall have no
obligations to each other except as provided in this Agreement. Upon
termination of this Agreement, Client shall (i) pay all amounts due
and owing to TYS, (ii) remove from TYS's premises all property owned
by Client and (iii) return to TYS all software, access keys and any
other property provided to Client by TYS under this Agreement. Any
property of Client not removed from TYS's premises within ten (10)
days after such termination shall become the property of TYS, which
may, among other things, dispose of such property without the payment
of any compensation to Client.
Continuing
Obligations
The following obligations shall survive the expiration or
termination hereof: (i) any and all limitations of liability and
indemnities granted by either party herein, (ii) any covenant granted
herein for the purpose of protecting the Proprietary Rights of either
party or any remedy for breach thereof, (iii) the payment of taxes,
duties, or any money to either party hereunder, and (iv) the return of
materials to either party.
Miscellaneous
This Agreement shall be construed under the laws of the State of
New Jersey, without regard to its principles of conflicts of law. This
Agreement constitutes the entire understanding of the parties with
respect to the subject matter of this Agreement and merges all prior
communications, understandings, and agreements. This Agreement may be
modified only by a written agreement signed by the parties. The
failure of either party to enforce at any time any of the provisions
hereof shall not be a waiver of such provision, or any other
provision, or of the right of such party thereafter to enforce any
provision hereof.
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