Hosting Services Agreement

The customer set forth on the Statement of Work (the “Customer”) is requesting the following services from OSIbeyond L.L.C. The Customer understands and acknowledges that this Hosting Services Agreement (“Hosting Services Agreement”) is subject to, and governed by, the Master Service Agreement between the parties located here.

1. Hosting Services; License

During the Term (as set forth in the Statement of Work), the Customer hereby engages OSIbeyond to host such software applications, databases, files content and/or Web sites hereto (collectively, “Application Software”) on servers (“Servers”) located at a OSIbeyond designated facility (“Facility”) and to provide the Services specified in the Statement of Work. For purposes of this Agreement “Services” includes without limitation: (i) operating the Application Software and necessary operating system software and utilities on the Servers; (ii) storing data that the Customer and Permitted Users (defined below) upload to or store on the Servers (the “Customer Data”), and (iii) making the Application Software and the Customer Data available to Permitted Users via the Internet. OSIbeyond hereby grants to the Customer a non-exclusive, non-assignable and non-transferrable license during the Term of this Agreement to upload the Customer Data to, and store the Customer Data on OSIbeyond Servers, and to access and use the Application Software (subject to all applicable third party licensing requirements) and such OSIbeyond content as is agreed to be made available on the Servers in accordance with all of the terms and

2. Permitted Users; Passwords

For purposes of this Agreement, “Permitted Users” shall mean the Customer’s employees who have registered to access the Application Software on a password-protected basis. Such Permitted Users will have complete access to the files and data stored on OSIbeyond’s Servers, with the ability to make changes and additions. The Customer can delete or add Permitted Users at any time, provided the Customer gives OSIbeyond written notice of such change prior to the effective date of such designation. The Customer’s Permitted Users may not disclose or share the Customer’s password(s) or provide them to any third parties. OSIbeyond will, at the Customer’s request, provide additional logins and passwords to be used by third parties acting on the Customer’s behalf and under the terms of this Agreement. However, OSIbeyond strongly recommends that the Customer limit administrative access to their systems to designated internal technical employees. Allowing administrative rights and permissions to multiple non-technical employees increases both security risks and potential problems with operating systems.

3. The Customer’s Responsibilities

Except as otherwise provided in this Agreement, the Customer represents and covenants the following:

The Customer will obtain and maintain during the Term all current licenses for the Application Software identified as the Customer’s responsibility in the scope of work in compliance with all applicable manufacture’s license requirements, including but not limited to any licenses necessary to allow OSIbeyond to provide the Services in connection with the Application Software, and agrees to be bound by the licenses and other agreements of any third party software used on the Servers or otherwise with the Services.
The Customer will ensure that Permitted Users comply with all of the terms and conditions of this Agreement. OSIbeyond will provide passwords to access the Services. The Customer will ensure the security and validity of each Permitted User’s username and password, and promptly notify OSIbeyond if the Customer believes anyone other than a Permitted User is using any such usernames or passwords.
The Customer will only use the Services for the Customer’s internal business use and not for any illegal or other impermissible activities. The Customer will comply with all Internet protocols and policies. The Customer will only use the Services and the Application Software for lawful purposes and will comply with all applicable federal, state and local laws and regulations in connection with the Services and the Application Software (including without limitation laws and regulations governing, export control, unfair competition, anti-discrimination or false advertising). The Customer will not use the Service for purposes of harassment, intimidation, or infringement of the privacy of any Internet users or user of Internet access, including but not limited to electronic mail. The Customer will not use the Servers or OSIbeyond’s Services, for SPAM or Unsolicited Email (“UCE”) mailing; hosting of Internet Relay Chat (IRC) servers; hosting sites or information that is advertised by UCE from other networks; or hosting of adult content or any form pornographic, threatening or obscene material or material harmful to minors; or material that publicly promotes racism, religious intolerance, ethnic bias, terrorism, violence or hatred. In the event the Customer does host Web sites or services that support spammers and causes OSIbeyond IP space to become blacklisted, the Customer agrees to take all steps necessary to remove the IP space from all known black lists.
The Customer will not rent, lease, sublicense, transfer distribute, copy or modify the Application Software or OSIbeyond Content, or any component thereof, provided as part of the Services without OSIbeyond’s written consent. The Customer will not intentionally adapt the Application Software or Services to create a derivative work intended to be proprietary to the Customer. In the event the Customer alters the Application Software in any way, the Customer shall be responsible for all such alterations, as well as the use and compatibility of any hardware and software not provided by OSIbeyond. In the event that alterations made by the Customer or the Customer’s use of hardware and/or software not provided by OSIbeyond impairs the Customer’s use of OSIbeyond’s Services, the Customer shall nonetheless be liable for all payments due under this Agreement.
The Customer will not attempt to gain unauthorized access to the Application Software or Services, or other user accounts, computer systems or networks connect to the Services. The Customer may not use any device or software to interfere or attempt to interfere with the proper working of OSIbeyond’s Servers or any account on its Servers. The Customer will not engage in attempts to flood the network or compromise the security or integrity of the Servers connected directly or indirectly to the Internet or to increase traffic levels for a malicious purpose or without a legitimate business purpose. The Customer will not engage in any security cracking or action which compromises OSIbeyond’s Server security or the security of any computer system connected to said Server network in any way.
The Customer will be responsible for all content contained on the Servers, including such items as text, data, attachments, files, audio, video, graphics, other Web site content and correspondence from Web site visitors (including such items as electronic mail, discussion board entries and chat room entries) (the “Customer Content”), at all times. The Customer shall make sure it owns, or has permission to use, all Customer Content. The Customer will not post, transmit, or permit Internet access to information the Customer desires to keep confidential. The Customer will not post or transmit any information or malware, including without limitation software that contains viruses, Trojan horses, worms, time bombs, cancelbots, illicit or malicious codes, or other harmful components that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information. The Customer will not post any material that is illegal, libelous, tortuous, or likely to result in claims against OSIbeyond by offended users. The Customer may not take any action that impose an unreasonable or disproportionately large load on OSIbeyond’s Servers without written permission.
The Customer will not use, transmit, re-transmit or store any materials on the Servers that may infringe the intellectual property rights or other rights of third parties, including trademark, trade secret, patent, and copyright, in violation of any federal or state laws and/or regulations, and the Customer will not remove, obscure, or alter any proprietary notices, disclaimers, trademarks, or other proprietary rights notices of any kind affixed to or contained in the Services, OSIbeyond Content, or the Application Software or any written or electronic report, output or result generated in connection with the Services.
OSIbeyond controls and operates the Services from the United States of America and is subject to the United States Export Administration Laws and Regulations. OSIbeyond makes no representation that the Services are appropriate or available for use in foreign countries. If the Customer uses the Services from outside the United States of America, the Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of the United States and other countries. The Application Software is controlled by the United States export laws and regulations. The Customer may not export or re-export the Application Software except in full compliance with the manufacturer’s terms of license and all applicable United States laws and regulations and executive orders, including in particular Parts 740, 742 and 744 of the Export Administration Regulations of the U.S. Department of Commerce, OFAC (Office of Foreign Asset Controls), and potentially ITAR (International Traffic in Arms Regulations). No software may be exported or re-exported into (or to a national or resident of) any country to which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
The Customer will adhere by any Acceptable Use Policies promulgated by OSIbeyond. OSIbeyond reserves the right at all times to prohibit activities that damage OSIbeyond’s commercial reputation or goodwill.
The Customer shall inspect and monitor any sites or materials hosted on the Servers (or more frequently at the Customer’s option) to ensure that no material therein is in violation of the above warranties. Unless otherwise agreed in a Statement of Work, the Customer shall be solely responsible for the content on the Servers; provided that OSIbeyond reserves the right to remove any materials which OSIbeyond becomes aware of that are, in OSIbeyond’s sole discretion, (i) potentially illegal, (ii) could subject OSIbeyond to liability, (iii) restrict or inhibit any other customer from enjoying OSIbeyond’s Services, or (iv) violate this Agreement. OSIbeyond reserves the right to cooperate with authorities and/or injured third parties in the investigation of any suspected crime or civil wrong. The Customer agrees that OSIbeyond may disclose any and all of the Customer’s information including assigned Internet Protocol (“IP”) numbers, account history, account use and other related information to any law enforcement agent who makes a written request or in response to a lawful subpoena without further consent or notification to the Customer. If the Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any illegal use, the Customer will be considered in breach of this Agreement and OSIbeyond may immediately suspend the Customer’s Service. OSIbeyond further reserves all rights to block or suspend Services that it believes to be abusive in any way. OSIbeyond reserves the right to issue warnings (written or verbal), suspend the Customer’s accounts, terminate the Customer’s account, bill the Customer for administrative costs and/or reactivation charges, or bring legal action and/or collect Damages, if any, caused by any such violation. For purposes of this Agreement, “Damages” means financial consequences resulting from any Claims, and “Claims” means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys’ fees and court costs, whether incurred at trial, on appeal or otherwise), including consequential, compensatory or punitive damages, or losses (whether known, unknown, asserted, unasserted, fixed, conditional or contingent) arising from, relating to or otherwise involving, directly or indirectly, the Services.
The Customer agrees to indemnify, defend and hold harmless OSIbeyond for any violation of this Agreement or applicable law that results in Damages arising from any third party Claim against OSIbeyond or its officers, directors, employees, agents or subcontractors, unless such Claim is the result of acts or omissions on the part of OSIbeyond or its agents or employees.

4. Proprietary Rights as between the Customer and OSIbeyond

The Services and related documentation are and shall remain the sole and exclusive property of OSIbeyond, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights thereto. All modifications, enhancements, updates, derivative works, and translations of or to the Services shall be deemed a part thereof. All rights not expressly granted to the Customer herein are reserved to OSIbeyond.
The Customer Content, including without limitations any data relating to the Customer’s business whether or not supplied to OSIbeyond or uploaded into the Application Software or stored on the Servers, is and shall remain the sole and exclusive property of the Customer, including all applicable rights to patents, copyrights, trademarks, trade secrets or other intellectual property or intellectual property rights thereto. In the event that this Agreement is terminated, OSIbeyond may retain copies of this data until backups are rotated and overwritten.
The Customer agrees that any IP addresses used by the Servers will at all times belong only to OSIbeyond, and the Customer shall have no right to use those IP addresses except as permitted by OSIbeyond during the Term of this Agreement. OSIbeyond may need to change or remove any IP addresses in its sole and absolute discretion.
The Application Software is and shall remain the sole and exclusive property of the Application Software manufacturer, including all applicable rights to patents, copyrights, trademarks, trade secrets or other intellectual property or intellectual property rights thereto.

5. Bandwidth Usage

For each of the Services provided (on a per VM basis) a bandwidth allocation of 5 (five) Mb (Megabits) per second will be assigned. Monthly bandwidth usage will be calculated on the aggregate bandwidth allocation of all Services provided. Additional billing beyond aggregate allocation will be calculated on the 95th percentile basis, also known as burstable billing. The Customer’s data throughput is measured and recorded at five-minute intervals throughout the billing period. At the end of the billing period, the measurements are sorted from highest to lowest, with the highest 5% of usage (roughly a 36-hour period for a monthly billing cycle) discarded and not included in the bill. The peak of the remaining 95% of bandwidth utilization is used as the rate at which the Customer will be charged for the billing period at $6.00/Mb.

6. Service Levels and Credit

Service Levels and Credit. In the event OSIbeyond fails to make the Services available at least 99.99% of the time in any given month during the Term of the Agreement due to Hosting Services Unavailability (as defined below), OSIbeyond will credit the Customer’s account for the unavailable services as follows.

A Customer who experiences Network Unavailability may receive Service Credits, calculated monthly as an aggregate of all Services Unavailability events, in accordance with the following:
– Service becomes unavailable for less than 1 hour: No Service Credit
– Service is unavailable 1 hour to 24 hours: 1/2 day Service Credit
– Each additional 24 hour block service is unavailable: 1/2 day Service Credit

A credit will be given only for those outages that were reported to OSIbeyond at the time of the outage. An outage is measured from the time it is reported to the time it is resolved.
“Hosting Services Unavailability” is defined as the number of minutes in which the Services are not available, measured from the time OSIbeyond is notified that the Services are inaccessible until the time accessibility is restored, but does not include any unavailability attributable to: (i) scheduled maintenance (whether by OSIbeyond, a vendor, or by the Customer); (ii) acts or omissions of the Customer or any Permitted User of the Application Software and Services, or any other person using passwords or equipment of the foregoing; (iii) content, third-party programs or other materials provided by the Customer; (iv) device downtime as long as the Services remain available (e.g., part of a redundant system is not functioning properly); (v) server down-time related to connectivity issues resulting from third-party-managed access to hosted server to the Customer internal network problems; (vi) defects or bugs in the Application Software; or (vii) any other cause(s) beyond OSIbeyond’s reasonable control. The Customer will be responsible for immediately notifying OSIbeyond of all third-party-managed access and internal network problems that arise.
In order to receive this credit, the Customer must notify OSIbeyond in writing within five (5) calendar days following the end of the month the Hosting Services unavailability occurred. All claims are subject to review and verification by OSIbeyond prior to any credits being granted. Credit requests should be sent via email and addressed to [email protected]. OSIbeyond will acknowledge credit requests within fifteen (15) business days of receipt and will inform the Customer whether such claim request is approved or denied. Approved credits will appear on the Customer’s next invoice.

7. Term / Termination

The term of this Hosting Services Agreement will commence on the Effective Date of the Statement of Work and continue for one (1) year (“Initial Term”), and will be automatically renewed following the Initial Term on an annual basis (each a “Renewal Term”) unless terminated by a party. The Initial Term and any Renewal Term are collectively the “Term”. Either party may terminate this Hosting Services Agreement by providing the other party with notice at least ninety (90) days prior to the end of the Initial Term or any Renewal Term.