▇▇▇▇▇▇▇▇▇.▇▇▇
WEB HOSTING SERVICES AGREEMENT
This is an agreement ("Agreement"), entered into this 29th day of March,
2000 ("Effective Date") between The MNI Group Inc./Women's Health Network
("CLIENT"), ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇.▇▇▇
("KEEPSMART"), ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ (collectively, the
"Parties").
1. DEFINITIONS
"Hosting Services" - The means to transfer information to and from the Internet
and support, operate, and monitor of such means.
"Internet" - The global information network addressable through the unique
address space provided by the Internet Protocol (IP) that allows communications
and information exchange via the Transmission Control Protocol/Internet Protocol
(TCP/IP).
"Professional Services" - Consulting, designing, programming, writing, creating
content, and other services excluding Hosting Services.
2. STATEMENT OF SERVICES. KEEPSMART hereby agrees to provide, operate and/or
maintain Hosting Services ("Services") for Client according to the Statement of
Work Exhibit ("Exhibit") attached to this Agreement, which Exhibit is
incorporated by reference as part of this Agreement. This Agreement applies only
to KEEPSMART's Services provided to Client and is supplementary to a general
Professional Services Agreement (PSA), if any exists, between KEEPSMART and
Client. If the provisions of this Agreement conflict with those of the PSA, the
provisions of the PSA shall govern. As needed, this Agreement may be modified,
and/or other Services may be added, at any time with the written consent of both
Parties by attaching an Exhibit signed by both Parties.
2.1 CATASTROPHIC FAILURE. KEEPSMART will make a good faith effort to
reestablish access to the CLIENT site in the event of a catastrophic failure.
Processes to inhibit the impact of such a failure include: daily backups that
are stored housed off-site and available off-site facilities for backup or
supplementary hosting.
3. ACCEPTABLE USE POLICY. Client agrees to abide by the "KEEPSMART Acceptable
Use Policy", which is made available to all KEEPSMART customers and which
KEEPSMART may modify and update from time to time. Client will be notified in
writing in the event the policy has been updated. Generally, this policy
includes provisions that KEEPSMART's Services shall not be used: 1) for any
unlawful purposes, and shall not be used to transmit, re-transmit or store
material in violation of any local, state, or federal laws and regulations, and
2) in a manner which is threatening, obscene, indecent or defamatory, and 3) in
any way that may seriously deteriorate the level of service KEEPSMART is able to
provide to its other Clients. Unacceptable actions also include, without
limitation, sending large volumes of unsolicited bulk e-mail, attempting to
circumvent security features in place on KEEPSMART's or other party's systems,
or violating the acceptable use policies of other networks to which Client's
Services provide access. KEEPSMART reserves the right to immediately suspend
Client's Services without notice if Client violates the acceptable use policy.
4. MAINTENANCE. KEEPSMART reserves the right to perform maintenance
periodically on its equipment which may require interrupting Services from the
Internet. KEEPSMART will make a good-faith effort to minimize the impact of such
maintenance and perform the work during off-peak hours. However, KEEPSMART may
perform emergency maintenance as needed to preserve and restore the overall
integrity of Services provided.
5. PAYMENT. Unless otherwise stated in an Exhibit attached to this
Agreement, the following payment terms shall be agreed to and used: KEEPSMART
shall submit monthly itemized invoices, and shall expect prompt payment due
within sixty (60) days from the date of the invoice. A late charge of 1.5% will
be assessed on any payment later than (60) days. Once charges are more than (90)
days past due, a payment default and suspension notice will be sent explaining
KeepSmart's intent to suspend services unless the required payment is received
within 2 weeks.
6. TERMINATION. This Agreement shall continue for an initial term as stated
on the Exhibit, or one (1) year otherwise, and shall automatically renew for
successive ninety (90) day terms until terminated as set forth herein, unless
otherwise specified in the Exhibit. KEEPSMART may immediately terminate this
Agreement upon default of Client's payment due or other breach of an obligation
under this Agreement. Either party may terminate renewal of this Agreement by
giving at least thirty (30) days written notice to the other party prior to the
end of the current term without obligation or liability. If Client terminates
this Agreement other than as set forth above, the following shall apply: a)
Client shall be charged the list price of any non-standard software included as
specified on an Exhibit, and either b) if terminated in the first sixty (60)
days of the initial term, Client shall pay setup fees plus a prorated daily fee
1
for the number of days services were provided up to and including the day
KEEPSMART received notification, or c) if terminated anytime after the first
sixty (60) of the initial term, Client forfeits remainder of the then current
term of the Agreement. In the event ▇▇▇▇▇▇▇▇▇.▇▇▇ terminates contract without
cause ("cause" is outlined in section 3 of this Agreement), ▇▇▇▇▇▇▇▇▇.▇▇▇ will
refund to Client a prorated daily fee for the number of days service remaining
as per the attached "Statement of Work."
7. INTELLECTUAL PROPERTY RIGHTS. Nothing in this Agreement shall be
construed to give Client or KEEPSMART rights or license to the intellectual
property of the other party. Client warrants and represents that it has
reproduction rights, including copyrights or licenses, to all material that
Client makes available to the Internet through the use of the Hosting Services
provided by KEEPSMART. KeepSmart reserves the right to immediately suspend any
Hosting Services that KEEPSMART reasonably believes are being used to violate
any intellectual property rights.
8. INDEMNIFICATION. Client is responsible for insuring the accuracy of, and
right to use or license to, the information, claims, and statements contained in
any material made available on the Internet, and assumes all liability arising
therefrom. Client agrees that all information provided to KEEPSMART to be posted
on web site is considered Public Knowledge. Any sensitive (non-public)
information must be accompanied by a written document detailing the nature of
the information, the purpose for sharing the information with KEEPSMART and the
task objectives related to this information. Client represents to KEEPSMART that
in connection with its use of services provided under this Agreement, Client,
its employees and agents will comply with all applicable acceptable use
policies, and federal, state and local laws, codes, rules and regulations.
Client will indemnify, defend and hold harmless KEEPSMART, its directors,
officers, employees and agents from and against any loss, liability, claims,
damages, expenses and fees (including reasonable attorneys' fees) that may be
sustained by reason of any claims made by a third party against KEEPSMART
resulting from the material Client makes available to the Internet, except for
loss, liability, claims, damages, expenses and fees arising out of
▇▇▇▇▇▇▇▇▇.▇▇▇'s gross negligence or willful misconduct.
KEEPSMART represents to Client that in connection with the provision of services
under this Agreement, KEEPSMART, its employees and agents will comply with all
applicable federal, state and local laws, codes, rules and regulations.
KEEPSMART further represents that KEEPSMART and its employees have and shall
maintain applicable permits and licenses necessary to provide such services to
Client. KEEPSMART will indemnify, defend and hold harmless Client, its
directors, officers, employees and agents from and against any loss, liability,
claims, damages, expenses and fees (including reasonable attorneys' fees) that
may be sustained by reasons of KEEPSMART's or its employees' a) failure to
comply with such laws, codes, rules, regulations, or b) failure to obtain and
maintain such permits and licenses.
The above indemnification obligations shall survive the expiration or
termination of this Agreement.
9. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
KEEPSMART provides these services as is without warranty of any kind other than
that set forth expressly within this agreement.
10. LIMITATION OF LIABILITY. KEEPSMART will not be liable for any indirect,
incidental, special, or consequential damages, or for any loss of profits
resulting from the use of KEEPSMART's services and products by client or any
third parties. This includes: 1) the use or inability to use Client's Hosting
Services; or 2) loss of data resulting from delays or errors in operation or
transmission, service interruptions, mistakes, omissions, deletions of files,
errors, defects, or any failure of performance whether or not caused by events
beyond KEEPSMART's reasonable control, including but not limited to acts of God,
communications line failure, theft, destruction, or unauthorized access to
KEEPSMART's records, programs, or services; or 3) that result from other matters
arising under this Agreement.
11. GENERAL PROVISIONS.
11.1 The parties acknowledge that this Agreement, including the attached
exhibits, expresses their entire understanding and agreement, and that there
have been no other warranties, representations, covenants or understandings made
by either party to the other, whether written or oral, except such as are
expressly set forth in this Agreement. The parties further acknowledge that if
the terms contained within the body of this Agreement conflict with the terms
contained in any signed attached Exhibit, the terms of the Exhibit shall
control.
11.2 All notices, demands or consents required or permitted under this
Agreement shall be in writing and shall be deemed to have been received on the
day it is postmarked to that party by U.S. Mail, or by any commercial courier,
2
to the respective parties at the following addresses:
The MNI Group Inc./Women's Health Network
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
11.3 Both parties agree to comply with all applicable federal, state, and
local laws and regulations in performing their activities under this Agreement.
11.4 If any provision of this Agreement is found invalid or unenforceable
under judicial decree or decision, the remainder shall remain valid and
enforceable according to its terms.
11.5 No failure or delay by either party in exercising any right, power or
remedy under this Agreement, except as specifically provided in this Agreement,
shall operate as a waiver of any such right, power or remedy, or excuse any
similar subsequent failure to perform any term or condition by the other party.
11.6 This Agreement shall be governed by the laws of the State of New
York.
11.7 This Agreement may be executed in multiple counterparts, any one of which
will be deemed an original, but all of which shall constitute one and the same
instrument.
11.8 Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and shall not be used in construing
it.
11.9 KEEPSMART reserves the right to list Client's names on a general
promotional listing of all KEEPSMART clients.
11.10 Either party may transfer or assign this Agreement only in connection with
its merger with, or the sale of all or substantially all of its assets to,
another third party.
We have carefully reviewed this Agreement and agree to and accept its terms and
conditions. We are executing this Agreement as of the day and year first written
above.
▇▇▇▇▇▇▇▇▇.▇▇▇ The MNI Group Inc./Women's Health Network
----------------------------- ------------------------------
Signature Signature
----------------------------- ------------------------------
Name Name
----------------------------- ------------------------------
Title Title
3
▇▇▇▇▇▇▇▇▇.▇▇▇
STATEMENT OF WORK EXHIBIT
1 PROJECT NAME
This project is called the "2000 - 2001 Women's Health Network Web Hosting
Program." ▇▇▇▇▇▇▇▇▇.▇▇▇ will host the following site for a period of 12 months
beginning May 1, 2000:
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
2 PROJECT MANAGERS
2.1 KEEPSMART PROJECT MANAGER
The following individual will serve, at least initially, as
KEEPSMART's project manager for this project.
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Project Manager
E-mail: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Postal Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2.2 CLIENT PROJECT MANAGER
The following individual will serve, at least initially, as
the Client's project manager for this project.
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
E-mail: ____________
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Postal Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3. SCHEDULE
The project will be completed according to the following schedule:
Web Site Hosting - KEEPSMART will host the Client's Web site for a period
of 12 months beginning May 1, 2000.
4. DESCRIPTION
Web Site Hosting
KEEPSMART will host the Client's Web Site for a period of 12 months
beginning May 1, 2000.
o 10 Gigabytes of monthly transfer (additional space available in 1
gigabyte blocks @ $100 per gigabyte block)
o 100 Megabytes of disk space
o Daily tape backup
o Traffic logs
o Domain name registration (if appropriate) and routing
5. BILLING AND PAYMENT TERMS
ITEM UNIT COST COST
Server Setup $3,500 GRATIS
Web site hosting (includes
e-commerce support) $450 per month $5,400
Less "One Year Contract Discount" 15% - $810
COST FOR INDIVIDUAL SITE HOSTING (12 MONTHS) $4,590
4
PAYMENT SCHEDULE TOTAL DUE UPON INITIATION OF PROJECT
(In order to qualify for "One Year
Contract Discount")
BY SIGNING BELOW, BOTH PARTIES AGREE TO BE BOUND BY THE PROVISIONS OF THIS
EXHIBIT, WHICH IS HEREBY MADE A PART OF THE STATEMENT OF WORK BETWEEN THE
PARTIES.
KEEPSMART ▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Client The MNI Group Inc./
Womens Health Network
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------- ---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Technology Officer, Title: President
▇▇▇▇▇▇▇▇▇.▇▇▇
Date: Date:
-------------------------- ---------------------------
5