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IMPORTANT - READ CAREFULLY: This Hosting Services
Agreement ("Agreement") is a legal agreement between you
(the "Client") and Apptix, Inc., ("Apptix"). By using
the services you accept all of the terms and conditions
of this Agreement. You agree that this Agreement is
enforceable against you like any written negotiated
agreement signed by you. IF YOU DO NOT AGREE, YOU WILL
NOT HAVE ACCESS TO THE SERVICES.
HOSTING SERVICES AGREEMENT
1. SERVICES & AVAILABILITY Apptix shall provide to you
the Hosting Services and the Technical Support Services.
Apptix shall use commercially reasonable efforts to
provide you with the service availability provided in
Appendix A. Apptix shall use commercially reasonable
efforts to perform scheduled maintenance at non-peak
hours and to provide advance notice as reasonably
practicable. Apptix shall provide as much advance notice
as possible for unscheduled and/or emergency
maintenance.
2. YOUR RESPONSIBILITIES
2.1 Service Orders & Activation. You are responsible for
ordering and activating service for each user.
2.2 User Equipment. You are responsible for the
selection, purchase, and configuration of your equipment
and user equipment, including computers, mobile devices,
and other hardware, used to access the Hosting Services.
Upon request, Apptix will assist you by providing
information as to equipment compatibility with Apptix's
network. You are responsible for maintaining the
functionality of all equipment, including ensuring
connectivity to the internet. You are responsible for
installing and configuring software (including your
internet firewall) on your equipment and user equipment
as required to access the Hosting Services.
2.3 Communication with Users. You are responsible for
communicating with users of the Hosting Services,
including providing notice of downtime and other
outages, service upgrades, and technical support.
2.4 Selection of Client Contact(s). You shall designate
up to two (2) employees as "Contacts," who shall be the
sole persons authorized to communicate with Apptix on
behalf of you. You shall notify Apptix of the Contacts
in writing. At least one of these Contacts shall be
designated the "Technical Contact," who shall be the
sole person(s) authorized to communicate with Apptix
with respect to technical issues, including service
availability. You acknowledge that Apptix is not
obligated to communicate with any other representatives
other than the designated Contacts.
2.5 Domain Name. You are responsible for registering and
maintaining your domain name, including the payment of
all costs and fees associated thereto.
2.6 Access to Client Facilities. You shall provide
Apptix with reasonable access to your facilities,
equipment (including your networks and servers), and
information technology personnel, as are reasonably
necessary for Apptix to provide the Hosting Services and
the Technical Support Services.
2.7 Network Management.
(a) Required Client Actions. You are responsible for
ensuring that you and your users use the Services
appropriately and in compliance with all Requirements of
Law. You shall use your best efforts to minimize network
abuse. You shall not permit any person to use the
Software, Documentation, or Services for any illegal or
unauthorized activities. You shall comply with Apptix's
Acceptable Use Policy, as the same may be modified from
time to time. You shall use your best efforts to
maintain a secure system, including the limited granting
of administrator privileges, regular changing of user
passwords, using passwords of at least eight characters
long with mixed text, and using up-to-date local
anti-virus software.
(b) Suspension of Services for Violations. Apptix may
suspend your use of the Services if Apptix reasonably
believes that your use of the Services violates this
Agreement or any Requirements of Law, represents a
threat to Apptix's network function or integrity, or
would subject Apptix to liability.
2.8 Technical Support. You are responsible for all
technical support not provided by Apptix as Technical
Support Services.
3. FEES AND PAYMENT
3.1 Fees. You shall pay to Apptix the Applicable Fees on
a monthly basis for the initial term of this Agreement.
For each additional term, the Applicable Fees shall be
the then current rates of Apptix (which shall be limited
to a 15% increase over the rates during the immediately
preceding term).
3.2 Procedure for Paying. You shall pay the Applicable
Fees on a monthly basis, as specified by Apptix. If
Apptix sends an invoice to you, payments are due by the
date specified on the invoice.
3.3 Taxes. The fees are exclusive of any national,
state, or local sales, use, value-added, excise,
withholding or other taxes, duties, tariffs or fees
assessed in connection with this Agreement by any
authority (collectively "Taxes"), which Taxes shall be
paid by you. You shall reimburse Apptix for any and all
such Taxes that Apptix may be required to pay promptly
upon receipt of Apptix's invoice therefor. This
provision does not apply to any Taxes for which you are
exempt (provided you have furnished Apptix with a valid
tax exemption certificate) or to Apptix's income or
franchise taxes.
3.4 Payment Terms & Collection Costs. All payments shall
be made in United States Dollars by credit card, or by
such other method as permitted by Apptix, to an account
designated by Apptix from time to time in writing.
Amounts not paid when due shall be subject to a late
charge of one and one-half percent (1.5%) per month or
the maximum rate permitted by applicable law, whichever
is less, from the due date until paid. You shall be
liable for any costs, fees, and expenses incurred by
Apptix in the collection of any amounts due under this
Agreement.
3.5 Suspension of Service for Failure to Pay Fees. In
the event you do not pay the Applicable Fees within
thirty (30) days of the invoice date, Apptix may either
suspend providing the Services or terminate this
Agreement.
3.6 Credit for Service Availability. In the event Apptix
is unable to provide the service availability level as
provided in Appendix A, and you comply with the credit
request procedures provided therein, you shall be
entitled to receive a credit based upon the credit
percentages in Appendix A. Any credit due thereunder
shall be included on the next subsequent invoice, or
such succeeding invoice as is reasonably practicable.
Credits are non-refundable and may only be used for the
payment of Applicable Fees. Notwithstanding anything to
the contrary herein, the total amount credited to you
for any month shall not exceed the Applicable Fees paid
by you for such month.
4. LICENSE & PROPRIETY RIGHTS
4.1 Software License. Subject to the terms and
conditions of this Agreement including the rights of any
Third-Party Licensors, Apptix grants to you a
non-exclusive, non-transferable license to: (a) access
and use the Software in executable form only, solely for
your own internal business purposes, and solely in
accordance with the Documentation; (b) copy and
reproduce the Documentation solely for the purpose of
facilitating your use of the Software.
4.2 Third-Party Software Licenses. You acknowledge that
all or a portion of the Software and Documentation have
been, or may be, licensed from Third-Party Licensors to
Apptix. Your use of the Software and Documentation is
subject to the terms and conditions of any applicable
end user license agreements of Apptix and Third Party
Licensors. Apptix makes no representations or warranties
regarding Software and Documentation provided under the
terms of any applicable end user license agreements with
Third Party Licensors. If Apptix reasonably believes
that the use of any component of the Software would give
rise to a colorable claim of infringement of the
intellectual property rights of any third party, Apptix
may, at its sole cost and expense, procure the right to
continuing using such component of the Software or
replace or modify it accordingly.
4.3 Restrictions. You acknowledge that the Software and
the Source Code contain valuable proprietary information
and trade secrets of Apptix and its Third-Party
Licensors. Except as expressly permitted in this
Agreement, you agree that you shall not, and will not
permit any third party, to (a) make, have made, copy,
reproduce, modify, adapt, alter, translate, or create
derivative works from the Software or Source Code; (b)
sublicense, distribute, sell, lease, rent, loan, or
otherwise transfer the Software or Source Code to any
third party; (d) reverse engineer, decompile,
disassemble, modify, or attempt to reconstruct,
identify, or discover the Software, Source Code, or any
underlying ideas or techniques of the Software or Source
Code (except and only to the extent that such activity
is expressly permitted by applicable law notwithstanding
this limitation); (e) remove, alter, cover or obfuscate
any copyright notices, trademarks, or other proprietary
rights notices included in the Software, the
Documentation, and/or the web access portal; or (f)
otherwise use the Software or the Documentation, except
as expressly permitted hereunder.
4.4 Ownership & Retained Rights. The Software and
Documentation, and all worldwide intellectual property
rights therein, are the exclusive property of Apptix and
its Third-Party Licensors. All rights not expressly
granted to you hereunder are hereby reserved by Apptix.
5. CLIENT DATA
5.1 Use & Disclosure. Apptix shall not use or disclose
any Client Data without the express written consent of
you, except for the following purposes: (i) to provide
the Hosting Services, including the improvement,
modification, and upgrading of the Hosting Services,
(ii) to provide the Technical Support Services, (iii) to
monitor the network to ensure compliance with this
Agreement, and (iv) as required by law or by the order
of a court or similar judicial or administrative body
and at your sole cost. You agree that Apptix may use
information obtained from the providing of the Services
to prepare statistical analyses, marketing forecasts,
and other business and financial compilations, so long
as such information is not identifiable to any person or
to you.
5.2 Handing and Security of Client Data. Apptix shall
locate all Client Data on secure servers with limited
access and required access authentication. Apptix shall
handle all Client Data in accordance with industry best
practices. You acknowledge that Apptix shall have no
further responsibility with respect to the security and
handling of Client Data, other than as provided in this
Section 5.2.
5.3 Back-up of Client Data. Upon your request, Apptix
shall restore Client Data to you using Apptix's data
back-ups. You acknowledge that Apptix's data back-ups
are limited and cover the period specified in Appendix
A. Apptix is not responsible for any Client Data loss
resulting from the failure of Apptix's back-up system,
including data storage devices or back-up media.
Restoration of Client Data shall be at your sole cost
and expense, unless the need for the restoration was due
solely to a failure or error of Apptix.
5.4 Upon Termination. Upon termination of this
Agreement, Apptix shall delete your Client Data from its
servers and data storage devices unless you notify
Apptix in writing no later than (30) days after
termination of this Agreement. Upon notification, Apptix
shall export and return any Client Data then in Apptix's
possession to you, at your sole cost and expense. You
agree that, except as provided in this Section 5.4,
Apptix has no obligation to continue to hold, export, or
return your Client Data and no liability for the
deletion of your Client Data pursuant to the foregoing
terms.
6. WARRANTIES
6.1 Mutual Warranties. Each Party represents and
warrants to the other that: (a) it has the full power
and authority and the legal right to enter into this
Agreement and to perform its obligations hereunder; and
(b) the execution and delivery of this Agreement and the
performance of its obligations hereunder do not conflict
with or constitute a default under any of its
contractual obligations.
6.2 Client Representations. You represent and warrant
that (a) you hold title to or are otherwise authorized
to use your domain name, (b) you will not knowingly or
negligently transmit information that contains viruses
or other computer programming defects; (iii) you will
comply with all Requirements of Law, (iv) you will not
transmit any bulk email ("Spam"), any content that
infringes the intellectual property rights of any third
party, any threatening or obscene materials, or any
defamatory, libelous, or other actionable content or
statements, and (v) the person signing this Agreement
has the authority to bind the Client to its terms and
conditions.
6.3 Disclaimers of Warranties.
(a) THE EXPRESS WARRANTY IN SECTION 6.1 IS IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY,
REGARDING THE SERVICES, AND APPTIX SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT,
AND ANY WARRANTIES ARISING FROM COURSE OF DEALING,
COURSE OF PERFORMANCE, OR TRADE USAGE, AND ANY
WARRANTIES REFERRED TO IN SECTION 6.3(b).
(b) THERE IS NO WARRANTY AGAINST INTERFERENCE WITH
CLIENT'S ENJOYMENT OF THE INFORMATION OR AGAINST
INFRINGEMENT REGARDLESS OF WHETHER THE ACTION AROSE
INSIDE OR OUTSIDE THE UNITED STATES. THERE IS NO
WARRANTY AGAINST INACCURACY. THERE IS NO WARRANTY OF
SYSTEMS INTEGRATION. THERE IS NO WARRANTY THAT APPTIX'S
OBLIGATIONS UNDER THIS AGREEMENT WILL FULFILL ANY OF
CLIENT'S OR ANY USER'S PARTICULAR PURPOSES OR NEEDS.
(c) CLIENT ACKNOWLEDGES THAT THE USE OF APPTIX'S
SERVICES ARE AT CLIENT'S OWN RISK AND THAT THERE IS NO
WARRANTY OF UNINTERRUPTED OR ERROR FREE SERVICE OR
ACCURACY OR RELIABILITY.
(d) CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO
WARRANTIES OTHER THAN THE EXPRESS WARRANTY IN THIS
AGREEMENT.
7. LIMITATION OF LIABILITY AND REMEDIES
7.1 IN NO EVENT SHALL APPTIX BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE,
OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA OR
CONFIDENTIAL INFORMATION, LOST PROFITS OR COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS
INTERRUPTION ARISING FROM OR RELATING TO THIS AGREEMENT,
OR ARISING FROM OR RELATING TO THE USE OF THE SOFTWARE
WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN APPTIX, OR
THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS,
DELETION OF FILES, LOSS OF DATA, ERRORS, DEFECTS, DELAYS
IN OPERATIONS, OR TRANSMISSION OR ANY FAILURE OF
PERFORMANCE, HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY (INCLUDING NEGLIGENCE), EVEN IF APPTIX HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THIS SECTION, APPTIX DOES NOT EXCLUDE OR
LIMIT LIABILITY IN RESPECT OF PERSONAL INJURY OR DEATH
TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED OR
LIMITED UNDER APPLICABLE LAW.
7.2 APPTIX'S TOTAL CUMULATIVE LIABILITY IN CONNECTION
WITH THIS AGREEMENT AND THE SERVICES, WHETHER IN
CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE
AMOUNT PAID TO APPTIX UNDER THIS AGREEMENT DURING THE
SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO
SUCH LIABILITY. THE EXISTENCE OF ONE (1) OR MORE CLAIMS
SHALL NOT ENLARGE THIS LIMIT.
7.3 You acknowledge that the limitations of Sections 6
and 7 reflect the allocation of risk set forth in this
Agreement and that Apptix would not enter into this
Agreement without these limitations on its liability,
and you agree that these limitations shall apply
notwithstanding any failure of essential purpose of any
limited remedy.
8. INDEMNIFICATION
8.1 Indemnification by Client. You shall, at your
expense, indemnify and hold Apptix harmless from any
costs, expenses (including attorney's fees), losses,
damages, and liabilities which Apptix may hereafter
incur, become responsible for, or pay out as a result of
death or personal injury (including bodily injury) to
any person, destruction or damage to any property to the
extent resulting from, relating to, or arising out of
the acts, errors, or omissions by you, your employees,
officers, agents, representatives, or subcontractors in
the performance of this Agreement.
8.2 Indemnification Procedure. Apptix, seeking
indemnification pursuant to this Section 8 (the
"Indemnitee"),
shall: (a) promptly notify you (the "Indemnitor") in
writing of the Claim for which indemnification is
sought; (b) make all reasonable efforts to provide Indemnitor with all information and material in
Indemnitee's possession regarding the Claim; (c) furnish
to Indemnitor such assistance as Indemnitor may
reasonably request in connection with the investigation,
settlement and defense of the Claim; and (d) grant
Indemnitor sole control over the defense and settlement
of the Claim; provided, however, that (i) Indemnitee may
participate in such defense at its option and expense,
and (ii) Indemnitor shall not dispose of or settle any
such claim in any manner which may adversely affect
Indemnitee's rights or interests without Indemnitee's
prior written consent, which consent shall not be
unreasonably withheld or delayed. Indemnitor shall not
be liable hereunder for any settlement entered into
without its prior written consent (which consent shall
not be unreasonably withheld or delayed).
9. TERM AND TERMINATION
9.1 Term. Unless terminated earlier as set forth herein,
this Agreement shall commence on the date you first
receive the Services and shall be a month to month
contract.
9.2 Termination for Cause. Either Party may terminate
this Agreement upon written notice to the other Party if
the other Party is in material breach of any provision
of this Agreement and: (a) such breach has not been
cured within thirty (30) days after receiving written
notice thereof from the terminating Party; or (b) if
such breach cannot reasonably be cured within such
thirty (30) day period, the breaching Party has not
commenced to remedy such breach within such period and
diligently endeavored to cure such breach within a
reasonable time thereafter. Apptix may terminate this
Agreement, effective immediately upon written notice to
you, if (a) you fail to pay any amount when due under
this Agreement within fifteen (15) days after receiving
written notice from Apptix that payment is past due, or
(b) you enter into a Change of Control transaction.
9.3 Termination upon Bankruptcy. Either Party may
terminate this Agreement immediately upon written notice
in the event that (a) the other Party is the subject of
a petition for bankruptcy, reorganization, or
arrangement, whether voluntary or involuntary, and the
same is not dismissed within sixty (60) days thereof,
(b) a receiver or trustee is appointed for all or a
substantial portion of the assets of the other Party, or
(c) the other Party makes an assignment for the benefit
of its creditors.
9.4 Effect of Termination.
(a) Upon termination or expiration of this Agreement for
any reason, all rights and obligations hereunder shall
immediately cease except that such termination shall not
terminate, limit, or restrict the rights and remedies of
either Party to redress for any breach or violation
(which remedies shall be cumulative), and (i) any
amounts owed to you or Apptix under this Agreement
before such termination or expiration shall be
immediately due and payable, and (ii) you shall promptly
discontinue using the Hosting Services and shall cease
to have access to the Hosting Services.
(b) The termination of this Agreement shall not effect
any professional services agreements entered into
between Apptix and you.
(c) Notwithstanding the expiration or termination of
this Agreement for any reason, Section 3 (Fees and
Payment), Section 4.3 (Restrictions), Section 4.4
(Ownership), Section 5.4 (Client Data upon Termination),
Section 6.3 (Disclaimers), Section 7 (Limitation of
Liability), Section 8 (Indemnification), this Section
9.4(c) (Effect of Termination), Section 10 (General
Provisions), and Section 11 (Definitions), shall survive
in accordance with their terms.
10. GENERAL PROVISIONS
10.1 Notices. All notices, consents, and approvals under
this Agreement must be delivered in writing by courier,
electronic facsimile (fax), or certified or registered
mail, (postage prepaid and return receipt requested) to
the other Party; and shall be effective upon receipt or
three (3) business days after being deposited in the
mail, whichever occurs sooner. Notices to Parties shall
be sent to the addresses set forth at the beginning of
this Agreement, and if to Apptix, to the attention of
"LEGAL DEPARTMENT." Notice of change of address shall be
given in the same manner as other communications.
10.2 Force Majeure. No Party shall be liable for any
failure to perform its obligations under this Agreement
if prevented from doing so by a cause or causes beyond
its reasonable control and not the fault of the
nonperforming Party, and the nonperforming Party has
been unable to avoid or overcome the act or event by the
exercise of due diligence, including, by way of example
and without limitation, war, flood, fire, earthquake,
riots, strikes, acts of God or public enemy, restraints
of government, terrorist acts, and military action.
10.3 Assignment. You may not assign or transfer any of
your rights under this Agreement, voluntarily,
involuntarily, or by operation of law, or in any other
manner, without the prior written consent of Apptix. Any
purported assignment or transfer of rights in violation
of this section is null and void. Subject to the
foregoing, this Agreement shall bind and inure to the
benefit of the Parties and their respective successors
and permitted assigns.
10.4 Waivers. Any waiver or failure to enforce any
provision of this Agreement on one occasion shall not be
deemed a waiver of any other provision or of such
provision on any other occasion.
10.5 Severability. If any provision of this Agreement is
held by a court of competent jurisdiction to be
unenforceable, such provision shall be changed and
interpreted to accomplish the objectives of such
provision to the greatest extent possible under
applicable law and the remaining provisions of this
Agreement shall continue in full force and effect.
10.6 Remedies. The Parties' rights and remedies under
this Agreement are cumulative. It is understood and
agreed that notwithstanding any other provisions of this
Agreement, a breach by a Party under this Agreement
shall cause the other Parties irreparable damage for
which recovery of money damages would be inadequate, and
that, in addition to any and all remedies available at
law, the other Parties shall be entitled to seek timely
injunctive relief to protect their rights under this
Agreement. If any legal action is brought to enforce
this Agreement, the prevailing Party shall be entitled
to receive its attorneys' fees, court costs, and other
collection expenses, in addition to any other relief it
may receive.
10.7 Governing Law. The laws of the Commonwealth of
Virginia (without giving effect to its conflicts of law
principles) govern all matters arising out of or
relating to this Agreement and all of the transactions
it contemplates, including without limitation, its
validity, interpretation, construction, performance, and
enforcement ("Governing Law").
10.8 Dispute Resolution. In the event of any dispute,
claim, question, or disagreement arising from or
relating to this Agreement or the breach thereof, the
Parties hereto shall use their best efforts to settle
the dispute, claim, question, or disagreement. To this
effect, they shall consult and negotiate with each other
in good faith and, recognizing their mutual interests,
attempt to reach a just and equitable solution
satisfactory to both Parties. If they do not reach such
solution within a period of sixty (60) days, then, upon
notice by either Party to the other, all disputes,
claims, questions, or differences shall be resolved by
arbitration in accordance with the rules of the American
Arbitration Association in accordance with its
Commercial Arbitration Rules. The arbitration is to be
conducted in Fairfax County, Virginia and the
arbitrators are to apply the Governing Law. Each Party
shall submit to any court of competent jurisdiction for
purposes of the enforcement of any award, order or
judgment. Any award, order or judgment pursuant to the
arbitration is final and may be entered and enforced in
any court of competent jurisdiction.
10.9 Independent Contractor/No Agency. Each Party agrees
and acknowledges that in its performance of its
obligations under this Agreement, it is an independent
contractor of the other Parties and is solely
responsible for its own activities. No Party shall have
any authority to make commitments or enter into
contracts on behalf of, bind, or otherwise obligate the
other Party in any manner whatsoever. Nothing contained
herein shall be construed as creating any agency,
partnership, or other form of joint enterprise between
the Parties.
10.10 Entire Agreement. This Agreement constitutes the
entire agreement between the Parties regarding the
subject hereof and supersedes all prior or
contemporaneous agreements, understandings, and
communication, whether written or oral.
11. DEFINITIONS
As used in this Agreement, the following terms shall
have the following respective meanings:
11.1 "Acceptable Use Policy" means Apptix's policy for
the acceptable use of the Services, as the same may be
amended from time to time, and listed on the Apptix
website for the Hosting Services.
11.2 "Applicable Fees" means the applicable service fees
for the Hosting Services.
11.3 "Change of Control" shall mean with respect to a
Party, the occurrence of any of the following events:
(a) any consolidation or merger of such Party with or
into any other entity in which the holders of such
Party's outstanding shares immediately before such
consolidation or merger do not, immediately after such
consolidation or merger, retain stock representing a
majority of the voting power of the surviving entity or
stock representing a majority of the voting power of an
entity that wholly owns, directly or indirectly, the
surviving entity; (b) the sale, transfer or assignment
of securities of such Party representing a majority of
the voting power of all of such Party's outstanding
voting securities to an acquiring party or group; or (c)
the sale of all or substantially all of such Party's
assets.
11.4 "Client Data" means any information of Client that
is identifiable to you, your employees, or other users
of the Services, including data processed or accessed by
the Services such as email, instant messages, and other
electronic data.
11.5 "Data Sheet" means the web-based information pages
you reviewed and completed which list the Hosting
Services you have elected, the Applicable Fees, the
Term, and the Discontinuation Fee.
11.6 "Documentation" means the information provided or
made available to you in connection with the use of the
Software and Services.
11.7 "Hosting Services" means those services selected by
you on the Data Sheet to which access shall be granted
under the terms of this Agreement, as the same may be
amended from time to time.
11.8 "Party" means each of Apptix and Client,
collectively the "Parties."
11.9 "Requirements of Law" means any present and future
laws, rules, regulations, statutes, codes or ordinances
of any governmental authority and all judgments,
decrees, injunctions, rulings, decisions, determinations
and interpretations thereof, applicable to the Services
to be provided under this Agreement and the obligations
of the Parties hereunder.
11.10 "Services" means the Hosting Services and the
Technical Support Services.
11.11 "Software" means the computer software program or
programs for the Services, and any modified, updated, or
enhanced versions of such programs that Apptix or a
Third-Party Licensor may make available to you under
this Agreement.
11.12 "Source Code" means the human readable version of
the Software that can be compiled into executable code.
11.13 "Technical Support Services" means the technical
support services to be provided by Apptix to you, listed
on attached Appendix B, as the same may be amended from
time to time.
11.14 "Third-Party Licensor" means a third-party
provider of Software to Apptix pursuant to a license
agreement.
Appendix A
SERVICE AVAILABILITY & CREDIT
Service Availability
Apptix shall use commercially reasonable efforts to make
available to you the Hosting Services at least 99.99% of
the time ("Service Level Commitment") with the following
exceptions ("Excusable Downtime"):
(i) Circumstances beyond Apptix's reasonable control,
including, without limitation, unavailability of or
interruption or delay in telecommunications or third
party services, virus attacks or hackers, failure of
third party software (including, without limitation,
ecommerce software, payment gateways, chat, statistics
or free scripts);
(ii) A failure of the internet, public switched
telephone network, or other communication circuits used
to access Apptix's network;
(iii) Scheduled network, hardware, or server maintenance
or upgrades, including regular weekly maintenance on
Friday nights (subject to change);
(iv) Emergency maintenance;
(iv) Your acts or omissions (or acts or omissions of
others engaged or authorized by you) including, without
limitation, custom scripting or coding (e.g., CGI, Perl,
HTML, ASP, etc.), OR your negligence, willful
misconduct, or use of the Hosting Services in breach of
this Agreement; and
(v) Other outages on the internet or otherwise that
hinder access to the Hosting Services.
Determination of Actual Service Level
For any month, the Actual Service Level Percentage is
computed as follows:
(1) Determine:
| Hours of Service + Hours of Excusable
Downtime |
| Total Hours |
(2) and then multiply by 100.
Fractional hours are rounded up to the next tenth.
Credit & Credit Request Procedure
For any month, you shall be entitled to a credit based
upon the following schedule:
| Service Availability
|
Credit Percentage |
99.99 to 100%
99.00% to 99.98%
97.50% to 98.99%
95.00% to 97.49%
94.99% or below |
0%
10%
25%
50%
100% |
In order to receive the credit, you must follow the
Credit Request Procedure specified on the Apptix website
for the Hosting Services.
Data Backup Period
Apptix completes daily data backups. These are kept
on-site for 30 days. Customer data restoration is
available for losses during the thirty day window with a
professional services fee of $150/hour.
Appendix B
TECHNICAL SUPPORT SERVICES
Services Provided
(a) Website. Apptix will provide technical support to
you via the technical support area of Apptix's website,
which may be accessed directly or through the control
panel. Access through the control panel is limited to
your designated Technical Contacts (with administrator
privileges). Website support operates on a 24 hour, 7
day a week basis.
(b) Telephone. Apptix will provide technical support to
your Technical Contacts through the technical support
telephone line. (See the Apptix website for the toll
free numbers for US and Canadian clients.)
Apptix will only provide basic application support, such
as requests for information on how to use the Hosting
Services or particular features thereof, when a support
representative is available. In most cases, users will
be directed to your internal help desk or Technical
Contact for these types of application inquiries.
(c) Resolution of Problems.
After your Technical Contact notifies Apptix of a
problem, Apptix will use its best efforts to resolve the
incident in accordance with the following guidelines:
Level 1. All problems are initially handled at Level 1.
Level 1 is as follows:
Troubleshooting - Identify the cause and source of the
reported problem and attempt to resolve it.
Triage - Apptix will determine the priority of the
reported problem as follows:
| Classification |
Severity Definition |
| Severity A |
A critical production system breaks down or
malfunctions, and the client business system is
inoperable. No clear work-around exists for the problem.
Examples: An outage for multiple shared customers or a
single dedicated customer. |
| Severity B |
A component of a production system
malfunctions and threatens to have a significant impact,
which may affect future productivity or lead to a
serious loss of service, and a work-around exists for
the problem. Example: MAPI is down, but OWA is
available. |
| Severity C |
A component of the Apptix production system
solution is not performing as documented, leading to
unexpected results with moderate or minor operational
impact. Examples: General requests from clients,
including password resets, public folder creations,
permissions, restores, chargeable events, and single
user issues. |
| Projects |
Includes all project related tasks, suggestions
on cosmetic or software enhancement requests,
documentation requests, usage questions, and
clarification on Documentation. There are no Service
Level Objectives for Projects. |
Escalate - Assign the problem to Level 2, if not
resolved at Level 1.
Level 2. Level 2 support attempts to resolve problems
that require extended troubleshooting time, system
administration, or specific expertise (such as
Networking, OS, etc.). Level 2 support is used for
escalated client problems resulting in the accrual of
user downtime and for complex application specific
issues. A client's inability to utilize an Elected
Service is immediately escalated to this Level 2. Data
restoration is a responsibility of Level 2 support.
Level 3. Level 3 support attempts to resolve problems
that require additional expertise or a time commitment
unavailable at Level 2. These include interactions with
ISVs, server/network hardware suppliers, third-party
support mechanisms, or critical issues resulting in
client downtime.
Escalation Times. Escalation time is the maximum amount
of time that can pass before an incident must be
escalated to another support level. General times to
escalate from one level to the next are shown in the
table below.
| Classification |
Acknowledgement |
Update |
Resolution |
| Severity A |
15 Minutes |
45 Minutes |
4 Hours |
| Severity B |
15 Minutes |
45 Minutes |
8 Hours |
| Severity C |
1 Hour |
24 Hours |
72 Hours |
| Projects |
N/A |
N/A |
N/A |
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