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HOSTING SERVICES AGREEMENT
This Hosting Services Agreement (the "Agreement") is entered into as
of January 19, 2000 (the "Effective Date") by and between Xxxxx.xxx, a Delaware
corporation with offices at 0000 X. Xxxxxxx'x Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000,
("Xxxxx.xxx"), and Texas Managed Care Administrative Services on behalf of
MethodistCare Inc., with offices at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX
00000 ("Client").
This Agreement includes the following schedules, which are
incorporated herein by this reference:
Schedule 1 Hosting Services Description and Pricing
Schedule 2 Managed Services Option
Any notice required or permitted under this Agreement will be in
writing and delivered to the address set forth below, or to such other notice
address as the other party has provided by written notice.
THIS AGREEMENT, INCLUDING THE SCHEDULES LISTED ABOVE, CONSTITUTES THE
COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES WITH REFERENCE TO THE
SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PRIOR SALES PROPOSALS, NEGOTIATIONS,
AGREEMENTS AND OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS AND CONDITIONS OF CLIENT'S PURCHASE
ORDER (OR ANY OTHER PURCHASE OR SALES DOCUMENT) AND THE TERMS AND CONDITIONS OF
THIS AGREEMENT, THIS AGREEMENT SHALL CONTROL. THIS AGREEMENT MAY BE MODIFIED,
REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY AUTHORIZED
REPRESENTATIVE OF EACH PARTY.
AGREED:
Xxxxx.xxx Client:
/s/ XXXXX X. XXXXXXXXXXX /s/ M. XXXXX XXXXXXXXX
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Xxxxx X. Xxxxxxxxxxx M. Xxxxx Xxxxxxxxx
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SR. VP. Finance & CFO President & CEO
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By: By:
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(Authorized Signature) (Authorized Signature)
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(Printed Name and Title) (Printed Name and Title)
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XXXXX.XXX HOSTING SERVICES AGREEMENT
1 Xxxxx.xxx Obligations
1.1 Xxxxx.xxx agrees to provide to Client the Services as described in Schedules
attached hereto pursuant to orders placed by Client and accepted by Xxxxx.xxx.
1.2 The initial service period for all orders for Services ("Initial Service
Period") shall commence upon activation of the Services and remain in effect for
a period of two years. If Client and Xxxxx.xxx fail to agree on the terms to
extend the Services past the Initial Service Period, the applicable Schedule for
Services shall continue in effect on a month-to-month basis, until terminated by
either Client or Xxxxx.xxx as provided in Section 4 below.
1.3 The fees for Services are specified in Schedule 1 of this agreement.
Xxxxx.xxx will issue invoices ("Invoices") to Client for installation fees for
Client's Services and other applicable nonrecurring and recurring fees covering
the initial one month period. On a monthly basis, Xxxxx.xxx will determine
Client's actual usage. After the initial one month period, Xxxxx.xxx will issue
Invoices on a monthly basis to Client as specified in attached schedules.
2 Client's Obligations
2.1 Client shall pay Xxxxx.xxx the amount specified in the Invoices, in U.S.
Dollars, per the payment terms set forth in such invoices. Late payments shall
bear interest at one and one-half percent (1.5%) per month or the maximum rate
permitted by law, whichever is less.
2.2 Client is solely responsible for all updates to Content (as defined below)
on Server ("Server") as defined in the applicable Schedule). Client shall update
Content on the Server by means of the Internet and a Xxxxx.xxx provided secure
account.
2.3 Xxxxx.xxx shall not obtain any right, title to and/or interest in content,
including but not limited to text, multimedia images (graphics, audio and
video), software and other data (collectively "Content") provided by Client and
installed by Xxxxx.xxx or Client on the Server; however, Xxxxx.xxx shall retain
title to and all rights in all other intellectual property including, but not
limited to, any know-how related to Xcare.net-provided products or services such
as the hardware, software or any other server technology.
2.4 Client acknowledges and agrees that use of the Services is subject to
Client's compliance with the terms defined in Xxxxx.xxx's Prohibited Uses of
Products and Services Policy, attached hereto as Exhibit A, as amended from time
to time. Violations of any of the terms of such policy shall constitute a breach
hereunder and may result in termination of this Agreement by Xxxxx.xxx.
2.5 Client is solely responsible for Content, including any subsequent changes
or updates made or authorized by Client. Client warrants and represents that
Content: (i) does not infringe or violate the rights of any third party
including, but not limited to, intellectual property rights (including but not
limited to patents, copyrights, trademarks, trade secrets and rights of
publicity); (ii) is not defamatory or obscene; and (iii) does not violate any
other applicable law. Xxxxx.xxx reserves the right (but shall have no
obligation) to delete any material installed on a Server in a Xxxxx.xxx facility
or to disconnect Internet access of a Server which contains Content which
Xxxxx.xxx believes in good faith breaches any of these warranties. Any breach of
these warranties by Client may result in termination of the Services.
2.6. Client acknowledges and agrees that Client assumes all risk related to the
processing of transactions related to electronic commerce. Xxxxx.xxx reserves
the right to discontinue the Services to Client if either Xxxxx.xxx believes in
good faith that Client has violated the foregoing, or that Client's use of the
Services poses a threat to the internal security of the Xxxxx.xxx network, the
Web hosting facility, other customers, or the Server.
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2.7 Upon termination of either this Agreement or any applicable Schedule for
Services, User must relinquish use of the Internet Protocol Addresses ("IP
Addresses") or address blocks assigned to it in connection with the Services.
2.8 All equipment provided by Xxxxx.xxx in connection with this Agreement shall
remain the property of Xxxxx.xxx.
3 Warranties and Indemnity
3.1 Xxxxx.xxx makes no warranties of any kind with respect to Services and
products provided under this Agreement. XXXXX.XXX DISCLAIMS ALL WARRANTIES,
EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. In any instance involving performance or nonperformance of
Services or products provided hereunder, Client's sole remedy shall be (a) in
the case of Services, refund of a prorata portion of the price paid for Services
which were not provided, or (b) in the case of products, repair or return of the
defective product to Xxxxx.xxx for refund, at the option of Xxxxx.xxx.
3.1.1 Except as otherwise may be provided in this Agreement, credit for lost
Services will be issued only for periods, calculated in fifteen (15) minutes
increments, in excess of eight (8) hours in a calendar month. Lost Services
or "Downtime" is deemed to have occurred only if service becomes unusable by
Client as a result of failure of Xxxxx.xxx facilities, equipment, or
personnel used to provide the Services, and only where the interruption is
not the result of (a) negligence or other conduct of Client or its agents,
including a failure or malfunction resulting from applications or services
provided by Client or its agents, (b) failure or malfunction of any
equipment or services not provided by Xxxxx.xxx, (c) circumstances beyond
the control of Xxxxx.xxx, or (d) interruption due to scheduled maintenance,
alteration, or implementation. All claims must be made within 60 days of the
date of such lost Services.
3.2 IN NO EVENT WILL XXXXX.XXX, ITS SUBSIDIARIES OR ITS OR THEIR AGENTS, BE
LIABLE TO CLIENT FOR ANY DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, OR OTHER
SPECIAL, INCIDENTAL, iNDIRECT OR CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES,
ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE, USE OR PERFORMANCE OF THE
SERVICES. Xxxxx.xxx will not be liable for any damages Client may suffer arising
out of Client's use, or inability to use, the Services or related products. In
no event shall Xxxxx.xxx be liable for unauthorized access to Client's
transmission facilities or Client premise equipment or for unauthorized access
to or alteration, theft or destruction of Client's data files, programs,
procedure or information through accident, fraudulent means or devices, or any
other method.
3.3 Xxxxx.xxx's liability for damages to Client for any cause whatsoever,
regardless of form of action, including negligence, shall not exceed an amount
equal to the price of products and Services purchased by Client during the
twelve month period preceding the event which caused the damages or injury;
provided, however, that this limitation shall not apply to damages to Client for
personal injuries or destruction of tangible personal property proximately
caused by the negligence of Xxxxx.xxx.
3.4 Xxxxx.xxx will indemnify and hold Client harmless against any claim or
demand by any third party that any hardware or software provided to Client
hereunder, infringes any United States copyright or trade secret. Except for
damages incurred by Xxxxx.xxx caused by (a) proprietary rights infringement
claims as provided for above, or (b) damages for personal injuries or
destruction of tangible property proximately caused by Xxxxx.xxx's gross
negligence or willful misconduct, Client agrees to indemnify and hold Xxxxx.xxx
harmless against any claim or demand by any third party due to or arising out of
the use by Client of Services and related products provided hereunder.
3.5 Client will indemnify and hold Xxxxx.xxx harmless against any claim or
demand by any third party brought as a result of Client's violation of the
Xxxxx.xxx Prohibited Uses Policy or and third party claims Content provided by
Client or by Xxxxx.xxx at Client's request.
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4. Termination
4.1 Termination for Convenience. Either party may terminate this Agreement by
providing the other party with at least ninety (90) days notice prior to the end
of the then current term.
4.2 Client may cancel or terminate this Agreement in the event of three (3) or
more "service interruptions" in excess of four (4) hours duration during any
thirty (30) day period, during the term of this Agreement. A "service
interruption" is deemed to have occurred only if service becomes unusable by
Client as a result of failure of Xxxxx.xxx facilities, equipment, or personnel
used to provide the Services, and only where the interruption is not the result
of (a) negligence or other conduct of Client or its agents, including a failure
or malfunction resulting from applications or services provided by Client or its
agents, (b) failure or malfunction of any equipment or services not provided by
Xxxxx.xxx, (c) circumstances beyond the control of Xxxxx.xxx, or (d)
interruption due to scheduled maintenance, alteration, or implementation.
4.3 This Agreement may be terminated by either party in the event of (i) any
material breach of, any of the terms and conditions of this Agreement by the
other party, which default continues in effect after the defaulting party has
been provided with written notice of default and thirty (30) days to cure such
default; (ii) the commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to either party of its
debts under any bankruptcy, insolvency, or other similar law now or hereafter in
effect, that authorizes the reorganization or liquidation of such party or its
debt or the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property; (iii) either
party's consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it; or (iv) either party's making a general assignment for the benefit
of creditors; or either party's becoming insolvent; or either party taking any
corporate action to authorize any of the foregoing.
4.4 In the event of termination by Client for any reason other than expiration
of a service order or a service interruption as defined in subsection 4.2,
Client agrees to immediately pay Xxxxx.xxx as a cancellation fee all monthly
recurring fees specified in the quote provided by Xxxxx.xxx for such service
order for the balance of the then current term, not to exceed the monthly fee.
Upon termination of this Agreement, Client must relinquish use of the Internet
Protocol Addresses ("IP Addresses") or address blocks assigned to it in
connection with the Services.
5. General
5.1 Force Majeure. In the event that either party is unable to perform any of
its obligations under this Agreement or to enjoy any of its benefits because of
any event beyond the control of the affected party including, but not limited
to, natural disaster, acts of God, actions or decrees of governmental bodies or
failure of communication lines (a "Force Majeure Event"), the party who has been
so affected shall promptly give written notice to the other party and shall use
its best efforts to resume performance. Upon receipt of such notice, all
obligations under this Agreement shall be immediately suspended for the duration
of such Force Majeure Event.
5.2 Assignment. Neither party shall have the right to assign this Agreement
without the prior written consent of the other party; provided, that either
party shall have the right to assign this Agreement to any person or entity that
acquires or succeeds to all or substantially all of such party's business or
assets upon written notice to the other party.
5.3 Severability. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable,
the remaining provisions of this Agreement shall be unimpaired and the parties
will substitute a new enforceable provision of like economic intent and effect.
5.4 Waiver. Waiver of any breach or failure to enforce any term of this
Agreement shall not be deemed a waiver of any breach or right to enforce which
may thereafter occur. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
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4 Termination
4.1 Termination for Convenience. Either Party may terminate this Agreement by
providing the other party with at least ninety (90) days notice.
4.2 Client may cancel or terminate this Agreement in the event of three (3) or
more "service interruptions" in excess of four (4) hours duration during any
thirty (30) day period, during the term of this Agreement. A "service
interruption" is deemed to have occurred only if service becomes unusable by
Client as a result of failure of Xxxxx.xxx facilities, equipment, or personnel
used to provide the Services, and only where the interruption is not the result
of (a) negligence or other conduct of Client or its agents, including a failure
or malfunction resulting from applications or services provided by Client or
its agents, (b) failure or malfunction of any equipment or services not
provided by Xxxxx.xxx, (c) circumstances beyond the control of Xxxxx.xxx, or
(d) interruption due to scheduled maintenance, alteration, or implementation.
4.3 This Agreement may be terminated by either party in the event of (i) any
material breach of any of the terms and conditions of this Agreement by the
other party, which default continues in effect after the defaulting party has
been provided with written notice of default and thirty (30) days to cure such
default; (ii) the commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to either party of its
debts under any bankruptcy, insolvency, or other similar law now or hereafter
in effect, that authorizes the reorganization or liquidation of such party or
its debt or the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property; (iii)
either party's consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it; or (iv) either party's making a general assignment for
the benefit of creditors; or either party's becoming insolvent; or either party
taking any corporate action to authorize any of the foregoing.
4.4 In the event of termination by Client for any reason other than expiration
of a service order or a service interruption as defined in subsection 4.2,
Client agrees to immediately pay Xxxxx.xxx as a cancellation fee all monthly
recurring fees specified in the quote provided by Xxxxx.xxx for such service
order for the balance of the then current term, not to exceed the monthly fee.
Upon termination of this Agreement, Client must relinquish use of the Internet
Protocol Addresses ("IP Addresses") or address blocks assigned to it in
connection with the Services.
5. General
5.1 Force Majeure. In the event that either party is unable to perform any of
its obligations under this Agreement or to enjoy any of its benefits because of
any event beyond the control of the affected party including, but not limited
to, natural disaster, acts of God, actions or decrees of governmental bodies or
failure of communication lines (a "Force Majeure Event"), the party who has
been so affected shall promptly give written notice to the other party and
shall use its best efforts to resume performance. Upon receipt of such notice,
all obligations under this Agreement shall be immediately suspended for the
duration of such Force Majeure Event.
5.2 Assignment. Neither party shall have the right to assign this Agreement
without the prior written consent of the other party; provided, that either
party shall have the right to assign this Agreement to any person or entity
that acquires or succeeds to all or substantially all of such party's business
or assets upon written notice to the other party.
5.3 Severability. In the event any one or more of the provisions of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable,
the remaining provisions of this Agreement shall be unimpaired and the parties
will substitute a new enforceable provision of like economic intent and effect.
5.4 Waiver. Waiver of any breach or failure to enforce any term of this
Agreement shall not be deemed a waiver of any breach or right to enforce which
may thereafter occur. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
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5.5 Notices. All notices, demands, requests or other communications required or
permitted under this Agreement will be deemed given when (i) delivered
personally; (ii) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid; or (iii) one (1) day after
deposit with a commercial overnight carrier, with written verification of
receipt.
5.6 Governing Law. This Agreement, the rights and obligations of the parties
hereto, and any claims or disputes thereto, shall be governed by and construed
in accordance with the laws of the State of Colorado without reference to
conflict of law principles.
5.7 Jurisdiction. All disputes arising out of or relating to this Agreement
shall be submitted to the non-exclusive jurisdiction of the state and federal
courts encompassing Denver, Colorado, and each party irrevocably consents to
such personal jurisdiction and waives all objections thereto.
5.8 Headings. Section headings contained in this Agreement are inserted for
convenience or reference only, shall not be deemed to be a part of this
Agreement for any other purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
5.9 Independent Contractors. The relationship of the parties hereunder shall be
that of independent contractors. Nothing herein shall be construed to constitute
a partnership between or joint venture of the parties, nor shall either party be
deemed the agent of the other or have the right to bind the other in any way
without the prior written consent of the other.
5.10 Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which,
when taken together, shall constitute one and the same instrument.
5.11 Publicity. Client understands that Internet use, and related products and
Services provided under this Agreement, may require registrations and related
administrative reports which are public in nature. In addition Client agrees
Xxxxx.xxx may include its name and a description of the provided services as a
reference or in client portfolios.
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EXHIBIT A
XXXXX.XXX PROHIBITED USES POLICY FOR
XXXXX.XXX HOSTING SERVICES
The following actions are defined by Xxxxx.xxx as "system abuse" and are
strictly prohibited under the Xxxxx.xxx Hosting Services Agreement. The
examples named in this list are not exhaustive and are provided solely for
guidance to Clients using the Xxxxx.xxx Hosting Services. If any Client is
unsure of whether a contemplated use or action is permitted, it is Client's
responsibility to determine the permitted use by contacting Xxxxx.xxx via
electronic mail at xxxxxxxx@xxxxx.xxx. The following activities are
expressly prohibited and could result in termination of a Client's
Xxxxx.xxx Hosting Services Agreement
GENERAL
o Resale of Xxxxx.xxx's products and services, unless
specifically permitted and documented in a separate written
agreement or the initial Client contract.
o Using the facilities and capabilities of Xxxxx.xxx or its
services to conduct any illegal activity or other activity
that infringes the rights of others.
o Deceptive on-line marketing practices. The United States
Federal Trade Commission has issued informative guidelines for
proper on-line marketing schemes. For more information about
the FTC guidelines review the Deception Policy Statement from
the FTC.
o Violations of intellectual property -- as legally protected by
copyrights and licenses. This includes, but is not limited to,
the installation or distribution of illegal, "pirated", or
other software products that are not appropriately licensed by
Client.
o Violations of privacy.
SYSTEM AND NETWORK
o Introduction of malicious programs into the network or Server
(e.g. viruses, worms, Trojan horses, etc.).
o Attempted or successful security breaches or disruption of
Internet communication. Security breaches include, but are not
limited to, accessing data of which Client is not an intended
recipient or logging into a Server or account that Client is
not expressly authorized to access.
o Client may not execute any form of network monitoring (e.g.
packet sniffer) which will intercept data not intended for
Client Server.
o Attempts to circumvent Client authentication or security of
any host, network, or account ("cracking").
o Attempts to interfere with or deny service to any user or any
host (e.g. Denial of Service Attacks).
o Use of any program/script/command, or sending messages of any
kind, designed to interfere with a third party Clients
terminal session, via any means, locally or via the Internet.
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BILLING
o Furnishing false or incorrect data on the signup form, hosting
agreement, or online hosting order application.
o Attempts to circumvent or alter the processes or procedures to
measure time, bandwidth utilization, or other methods to
document "use" of Xxxxx.xxx's products and services.
MAIL
o Sending unsolicited mail messages, including the sending of
"junk mail" or other advertising material to individuals who
did not specifically request such material (e.g. "spamming").
o Harassment, whether through language, frequency, or size of
messages.
o Forging of mail header information to a third party.
o Using the Xxxxx.xxx or Client account to collect replies to
messages sent from another provider, which violate these rules
or those of the other provider.
o Creating or forwarding "chain letters" or other "pyramid
schemes" of any type.
USENET NEWSGROUPS
o Posting the same or similar message to large numbers of Usenet
newsgroups.
o Posting chain letters of any type.
o Posting encoded binary files to newsgroups not specifically
named for that purpose.
o Cancellation or superseding of posted messages other than your
own.
o Forging of header information.
o Solicitations of mail for any other e-mail address other than
that of the poster's account or service, with intent to harass
or to collect replies.
IRC (INTERNET RELAY CHAT)
o Use of IRC scripts or programs that will interfere with or
deny service to other clients on any Server or host.
o Running or attempting to run any IRC robot or Server on
equipment other than the equipment provided by Xxxxx.xxx to
the Client.
ADMINISTRATOR ACCOUNTS
The following section details Xxxxx.xxx's policy regarding
administrator privileges with the products and services offered by
Xxxxx.xxx's Hosting Services Group. Clients utilizing Xxxxx.xxx Hosting
Services products and services, whether the Server is provided by
Xxxxx.xxx or is provided by the Client are subject to the following
list of restrictions. The items in this list are not exhaustive and are
provided solely for guidance to Clients using the Xxxxx.xxx Hosting
Services. If any Client is unsure of whether a contemplated use or
action is permitted it is Client's responsibility to determine the
permitted use by contacting Xxxxx.xxx via electronic mail at
xxxxxxxx@xxxxx.xxx.
o Client may not change the IP address or name of the Server.
o Client may not provide or share administrator privileges with
individuals who have not reviewed and agreed to the terms of
the Xxxxx.xxx Hosting Services Agreement and the Xxxxx.xxx
Prohibited uses Policy for Xxxxx.xxx Hosting Services.
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SCHEDULE 1
HOSTING SERVICES DESCRIPTION AND PRICE SCHEDULE
In accordance with this agreement, Xxxxx.xxx will provide the following
services, resources and service features:
SERVER CONFIGURATION
HARDWARE
Xxxxx.xxx Sun Server Technical Facility.
XXXXX.XXX HOSTING PROVIDED SOFTWARE
As part of the Hardware Operating Systems used.
DATA CENTER
- New Mexico Technical Facility.
BANDWIDTH & NETWORKING
- Frame Relay.
BACKUP
- Provided by Xcare through redundant sites.
SERVICES
- Hosting of MethodistCare website and transactions, as well as
maintenance of those transactions to include: Member traffic counts,
transaction counts, security and preventive maintenance. Service
also includes maintenance of hardware and hardware operating systems
to host these services. Services also include upgrade of Operating
Systems and Hardware to support transaction operations.
PRICING SETUP FEE MONTHLY FEE
------- ------------- --------------
TOTAL PRICING AS CONFIGURED ABOVE: SEE * OF CURRENT
DEVELOPMENT MONTHLY PMPM
AGREEMENT, FEES
ATTACHMENT 2
Each additional 1Mbps of average bandwidth utilization N/A $
----
Each additional 10GB of data backup N/A $
----
* This confidential information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities
and Exchange Act of 1934, as amended.
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SCHEDULE 2
MANAGED SERVICES OPTION
As the Managed Services portion of this Hosting agreement, Xxxxx.xxx will
provide server administration and management services that include but are not
necessarily limited to:
o Performance/resource monitoring and proactive problem resolution
o Daily systems administration tasks
o Applying operating system enhancements and security patches
o Adding user accounts
o Configuring DSN's and database connections
o Managing DNS services
o Adding/configuring FTP services
o Installing security certification keys
o Minor software revision changes & application patches
o Conducting automatic log rotation
o Checking disk space
o Facilitating restore requests
The above services are limited to a maximum of [35] hours of proactive
administration and [35] hours of Client requested administration per month.
In addition, Xxxxx.xxx Hosting will provide 24x7 1st level response for
recovering application related problems that have caused a complete outage to
the Web Services. However, these issues may need to be escalated to the
appropriate Application Development contact provided by the client for
resolution.
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