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EXHIBIT 10.31
HOSTING SERVICES AGREEMENT
This Hosting Services Agreement (the "Agreement") is entered into as of
November 10, 1999 (the "Effective Date") by and between Xxxxx.xxx, a Delaware
corporation with offices at 0000 X. Xxxxxxx'x Xxxx Xxxxxx, Xxxxxxxxx, XX 00000,
("Xxxxx.xxx"), and Delta Heath Systems, with offices at Stockton, CA
("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REPLACED OR RESCINDED ONLY IN WRITING, AND SIGNED BY A DULY AUTHORIZED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 DHS
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By /s/ XXXXXX XXXXXXX By /s/ XXXXXX X. XXXXXXX 11/10/99
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Xxxxxx Xxxxxxx, Pres. and CEO Xxxxxx X. Xxxxxxx, President
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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 I 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
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security of the Xxxxx.xxx network, the Web hosting facility, other customers, or
the Server.
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 pro rata 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, IT'S 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, except where such unauthorized access occurs through Xxxxx.xxx
facilities or premises.
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 Either party may terminate this Agreement by providing the other party
with at least sixty (60) 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 breach as defined in subsection 4.3. 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. 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
- Resale of Xxxxx.xxx's products and services, unless specifically
permitted and documented in a separate written agreement or the initial
Client contract.
- 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.
- 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 gradelines review
the Deception Policy Statement from the FTC.
- 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.
- Violations of privacy.
System and Network
- Introduction of malicious programs into the network or Server (e.g.
viruses, worms, Trojan horses, etc.).
- 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.
- Client may not execute any form of network monitoring (e.g. packet
sniffer) which will intercept data not intended for Client Server.
- Attempts to circumvent Client authentication or security of any host,
network, or account ("cracking").
- Attempts to interfere with or deny service to any user or any host
(e.g. Denial of Service Attacks).
- 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
- Furnishing false or incorrect data on the signup form hosting
agreement, or online hosting order application.
- 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
- 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").
- Harassment, whether through language, frequency, or size of messages.
- Forging of mail header information to a third party.
- 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.
- Creating or forwarding "chain letters" or other "pyramid schemes" of
any type.
USENET NEWSGROUPS
- Posting the same or similar message to large numbers of Usenet
newsgroups.
- Posting chain letters of any type.
- Posting encoded binary files to newsgroups not specifically named for
that purpose.
- Cancellation or superseding of posted messages other than your own.
- Forging of header information.
- 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)
- Use of IRC scripts or programs that will interfere with or deny service
to other clients on any Server or host.
- 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.
- Client may not change the IP address or name of the Server.
- 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
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Hardware
Sun Solaris
Xxxxx.xxx Hosting Provided Software
DATA CENTER
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- Xxxxx.xxx eCommerce Operations Center: associated with tools,
software, database and reporting.
BANDWIDTH & NETWORKING
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- T1 bandwidth with dedicated frame relay.
BACKUP
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- Provided redundancy through MCI/UUNet
SERVICES
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Application maintenance (install upgrades)
Application support (help desk)
Technical support (remote, on-site additional)
Account management
PRICING SETUP FEE MONTHLY FEE
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Total pricing as configured above due upon [ * ] [ * ]
Acceptance and monthly thereafter for the
duration of the contract:
This represents 15% of the current Monthly
Transaction Fee and will be adjusted accordingly.
* Confidential Treatment Requested
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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:
- Performance/resource monitoring and proactive problem resolution
- Daily systems administration tasks
- Applying operating system enhancements and security patches
- Adding user accounts
- Configuring DSN's and database connections
- Managing DNS services
- Adding/configuring FTP services
- Installing security certification keys
- Minor software revision changes & application patches
- Conducting automatic log rotation
- Checking disk space
- Facilitating restore requests
The above services are limited to a maximum of thirty (30) hours of proactive
administration and thirty (30) 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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