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WEB HOSTING AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY

BY CLICKING ON THE BUTTON ON THE ORDER FORM AND REQUESTING WEB HOSTING SERVICES FROM BARRETT WEB SERVICES CREATES A CONTRACT BETWEEN YOU THE CUSTOMER AND BARRETT WEB SERVICES. THIS CONTRACT CONSISTS OF:

• THE ORDER
• THE APPLICABLE SERVICE DESCRIPTION
• THIS USER AGREEMENT
• THAT YOU AR AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING BARRETT WEB SERVICES' ACCEPTABLE USAGE POLICY AND TERMS OF SERVICE, YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

1.             Hosting Agreement.

This Agreement (and all other documents referenced herein) is entered into by Barrett Web Services ("Barrett Web Services") the party set forth in the related order form ("Customer" or “you”) for the purpose of providing Customer with Web-based access to Barrett Web Services’ software as specified in any subsequent order forms submitted by Customer (“Order Form”), including any updates, upgrades or revisions provided under this Agreement ("Software"), and certain other services relating to the processing of and response to online inquiries and messages ("Online Messages") received by Customer from its customers and other users of Customer's Web site ("Users").

2.             Provision of Services.

Barrett Web Services will provide Customer with access, maintenance and related hosting services ("Hosting Services") to the Software installed on Barrett Web Services’ servers and other equipment (including third party servers, other equipment, and services leased or resold by Barrett Web Services, the "Barrett Web Services System"). Customer agrees, as reasonably requested by Barrett Web Services, to provide Barrett Web Services with access to Customer's premises and equipment and to otherwise cooperate with Barrett Web Services in performing the services. During the term of this Agreement, Customer may obtain information ("Reports") regarding Customer's use of the Software and the quantity and handling of Online Messages routed to the Barrett Web Services System by accessing the Barrett Web Services System through a password-protected Web site made available by Barrett Web Services.  Customer shall be responsible for maintaining the confidentiality of such passwords and shall permit only authorized employees of Customer to access the Barrett Web Services System. The Hosting Services and the hosting fees specified in the Order Form, do not include any deployment, training or other consulting or professional services which, if applicable, will be specified in a Statement of Work, signed by both parties, and incorporated herein by this reference.

2.1         Customer Support.

Barrett Web Services will provide e-mail support to Customer 24-hours-a-day, seven-days-a-week by a trained Barrett Web Services customer support representative.

3.             Customer's Responsibilities.

Customer agrees that it shall be responsible for providing and maintaining its own Internet access and all necessary telecommunications equipment, software and other materials ("Customer Equipment") at Customer's location necessary for accessing the Software and the Barrett Web Services System through the Internet. Customer agrees to notify Barrett Web Services of any changes in the Customer Equipment, including any system configuration changes or any hardware or software upgrades, which may affect the Hosting Services provided hereunder. The Barrett Web Services System is only to be used for lawful purposes.  Customer agrees not to transmit, re-transmit or store materials on or through the Barrett Web Services System or the Software that are harmful to the Barrett Web Services System or Software, or in violation of any applicable laws or regulations, including without limitation laws relating to infringement of intellectual property and proprietary rights of others. To the extent that certain components of the Software may be downloaded to Customer's or User's computer as a result of accessing the Software as part of the Hosting Services, Barrett Web Services grants Customers a non-exclusive, non-transferable, limited license, with right to sublicense solely to Users, to use such Software only in connection with the Hosting Services. Neither Customer nor Users are otherwise permitted to use the Software, nor will Customer or Users disassemble, decompile or otherwise attempt to discern the source code of such Software. Customer agrees that, except as expressly set forth in this Section and in Section 11, it will not rent, lease, sublicense, re-sell, time-share or otherwise assign to any third party this Agreement or any of Customer's rights or licenses to access the Software or the Barrett Web Services System, nor shall Customer use, or authorize others to use, the Software, Hosting Services or the Barrett Web Services System to operate a service bureau.  Notwithstanding the preceding sentence, Customer shall be permitted to provide access to the Barrett Web Services System to its employees and agents located worldwide.

4.             Proprietary Rights.

Except for the limited access right granted to Customer in this Agreement, all right, title and interest in and to the Software (including any and all modifications as a result of any implementation services rendered) and the Barrett Web Services System are and shall remain the exclusive property of Barrett Web Services and its licensors. Barrett Web Services acknowledges and agrees that the Online Messages are the property of Customer and that Barrett Web Services has only a limited right to use the Online Messages as set forth in the following sentence. Notwithstanding the foregoing, Barrett Web Services may access and disclose the Online Messages solely as necessary to provide the Hosting Services, to operate and maintain its systems, to comply with applicable laws and government orders and requests, and to protect itself and its customers.

5.             Pricing and Payment.

Customer agrees to pay the fees and other charges for the Hosting Services and other services provided under this Agreement as specified in the Order Form. CUSTOMER AGREES TO PAY FOR HOSTING SERVICES ON OR BEFORE THE FIRST DAY OF THE TERM SPECIFIED IN THE ORDER FORM, except that, with respect to Additional Fees (as defined in the Order Form), Barrett Web Services will invoice Customer for such Fees in the month after the month in which such fees accrue as provided in the Order Form. All amounts payable hereunder are exclusive of any and all taxes, and Customer is responsible for payment of such taxes (excluding taxes based on Barrett Web Services’ net income). All prices are stated, and Customer shall pay, in United States dollars. Payment received by Barrett Web Services after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. At the end of the initial one-year term of this Agreement and any subsequent one-year terms, Barrett Web Services may adjust the fee payable under this Agreement by providing Customer written notice of such adjustment at least sixty (60) days prior to the beginning of the new term. 

6.             Limited Warranties; Disclaimer of Warranties.

6.1         Barrett Web Services warrants and represents to Customer that (i) the Software will perform substantially in accordance with the documentation, if any, provided by Barrett Web Services to Customer, and (ii) the Hosting Services will be performed in a professional and workmanlike manner and in accordance with Section 2. In the event of Downtime (as defined in this Section 6.1 below), as Customer's sole and exclusive remedy and Barrett Web Services’ sole and exclusive liability, the monthly fee payable for the Hosting Services shall be reduced as follows:

(a)      For the first sixty (60) minutes of Downtime during Normal Business Hours or the first four (4) hours of Downtime outside of Normal Business Hours ("Initial Downtime"), Barrett Web Services will credit Customer's account for one (1) day of service.

(b)      For each eight (8) hour period of Downtime per day in addition to the Initial Downtime, Barrett Web Services will credit Customer's account for one (1) additional day of service.

For the purposes of this Agreement, "Downtime" shall mean any interruption in the availability of Hosting Services to Customer (excluding scheduled interruptions of which Customer is notified 48 hours in advanced), only if such interruption is due either to: 1) an error in the Software, or 2) failure of the Barrett Web Services System (but not including problems associated with Internet connectivity).  Downtime begins upon Customer notification to Barrett Web Services of the interruption via the Barrett Web Services support email support@barrettwebservices.com, and continues until the availability of the Hosting Services is restored to the Customer. For purposes of this Agreement, "Normal Business Hours" shall mean between the hours of 8:00 a.m to 7:00 p.m. Eastern Time, Monday through Friday excluding national holidays.

In the event of a breach (other than Downtime) of the warranty set forth in Section 6.1(i) above, Customer's sole and exclusive remedy, and Barrett Web Services’ sole and exclusive liability shall be, at Barrett Web Services’ option, repair or replacement of the Software.

THE FOREGOING CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND BARRETT WEB SERVICES’ ENTIRE LIABILITY, FOR DOWNTIME AND FOR BREACH OF THE HOSTING SERVICES WARRANTY PROVIDED IN THIS SECTION 6.1.

6.2         EXCEPT AS PROVIDED IN SECTIONS 6.1, (A) THE HOSTING SERVICES ARE PROVIDED, AND THE SOFTWARE AND THE BARRETT WEB SERVICES SYSTEM ARE MADE AVAILABLE, BY BARRETT WEB SERVICES TO CUSTOMER "AS IS," AND (B) BARRETT WEB SERVICES AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE HOSTING SERVICES, THE SOFTWARE OR THE BARRETT WEB SERVICES SYSTEM, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.

6.3         Without limiting the express warranties set forth in this Agreement, Barrett Web Services does not warrant that the Software, the Barrett Web Services System or the Hosting Services will meet Customer's requirements (except as provided in Section 6.1) or that Customer's access to and use of the Software, the Barrett Web Services System or the Hosting Services will be uninterrupted or free of errors or omissions. Barrett Web Services cannot and does not guarantee the privacy, security, authenticity and non-corruption of any information transmitted through, or stored in any system connected to, the Internet. Barrett Web Services will use commercially reasonable efforts to adequately maintain, and upgrade as necessary, the Barrett Web Services System to provide the Hosting Services to its customers. However, except as expressly set forth herein, Barrett Web Services shall not be responsible for any delays, errors, failures to perform, or disruptions in the Hosting Services caused by or resulting from any act, omission or condition beyond Barrett Web Services’ reasonable control. 

7.             Limitation of liability.  

EXCLUDING LIABILITY FOR INFRINGEMENT CLAIMS AS DISCUSSED IN SECTION 9 OF THIS AGREEMENT, IN NO EVENT SHALL BARRETT WEB SERVICES BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF BARRETT WEB SERVICES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Barrett Web Services’ entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, shall in no event exceed an amount equal to the price paid for the Services out of which the claim arose. 

8.             Confidential Information.

Each party agrees to keep confidential and to use only for purposes of performing (or as otherwise permitted under) this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or which would reasonably be considered of a confidential nature. The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing, is rightfully obtained from a third party who has the right to disclose it, or which is required by law, government order or request to be disclosed. Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.

9.             Indemnification.

Subject to the limitations set forth in this Section 9, Barrett Web Services will defend any third-party suit or action against Customer to the extent such suit or action is based on a claim that the Software or the Barrett Web Services System infringes any valid United States patent, copyright, trade secret or other proprietary right, and Barrett Web Services will pay those damages and costs finally awarded against Customer in any monetary settlement of such suit or action which are specifically attributable to such claim. These obligations do not include any claims to the extent they are based on use of the Software or Barrett Web Services System in violation of this Agreement or in combination with any other software or hardware, or any modification to the Software or Barrett Web Services System pursuant to Customer's specifications. If any portion of the Software or Barrett Web Services System becomes, or in Barrett Web Services’ opinion is likely to become, the subject of a claim of infringement, then Barrett Web Services may, at its option and expense, (a) procure for Customer the right to continue using such Software or the Barrett Web Services System, or (b) replace or modify the Software or the Barrett Web Services System so that it becomes non-infringing. The indemnity obligations set forth in this Section 9 are contingent upon: (i) Customer giving prompt written notice to the Barrett Web Services of any such claim(s); (ii) Barrett Web Services having sole control of the defense or settlement of the claim; and (iii) at Barrett Web Services’ request and expense, Customer cooperating in the investigation and defense of such claim(s). THE FOREGOING STATES BARRETT WEB SERVICES’ ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

10.         Term and Termination.

10.1     Term and Termination.

(a)      The initial term of this Agreement shall be as set forth in the Order Form (the “Initial Term”).  The Initial Term shall begin upon commencement of the Service to Customer.  After the Initial Term, this Agreement shall automatically renew.  ADDITIONALLY AFTER THE INITIAL TERM, YOU ACKNOWLEDGE, AGREE, AND AUTHORIZE BARRETT WEB SERVICS TO AUTOMATICALLY BILL AND/OR CHARGE ON YOUR CREDIT CARD PROVIDED ON THE ORDER FORM FOR SUCCESSIVE TERMS OF EQUAL LENGTH AS THE INITIAL TERM, UNLESS TERMINATED OR CANCELLED BY EITHER PARTY AS PROVIDED IN THIS SECTION.

(b)      This Agreement may be terminated by either party by giving the other party thirty (30) days prior written notice, the other party's insolvency, or the institution of any bankruptcy or similar proceedings by or against the other party.

(c)      Barrett Web Services may cancel this Agreement in the event of nonpayment by Customer if Customer is over 30 days past due, if Customer violates the Terms of Service Policy, if Customer violates the Acceptable Use Policy, if Customer uses excessive amounts of CPU processing on Barrett Web Services’ System, and/or if Customer is in breach of this agreement and/or related agreements.  If Barrett Web Services cancels service under this Subparagraph (Section 10, Paragraph 10.1, Subparagraph (c)), Customer shall not be entitled to a refund of any fees paid in advance prior to such action.

10.2     Effect of Termination.

Upon any termination of this Agreement, Barrett Web Services shall immediately cease providing all Hosting Services, and Customer shall no longer have access to the Software or the Barrett Web Services System. Except in the event of termination for Customer's breach, Barrett Web Services shall provide Customer with an electronic copy of the final Reports (covering the month just prior to termination of this Agreement). Barrett Web Services shall be entitled to retain a copy (whether electronic or otherwise) of the Online Messages and the Reports for its records and internal purposes and shall not disclose such Online Messages or Reports to any third party except as permitted under Section 4. Within fifteen (15) days of any termination of this Agreement, Customer shall pay to Barrett Web Services all unpaid fees accrued prior to termination. Sections 4, 5 (as to amounts accrued but unpaid), 7, 8, 10.2 and 12 and the Order Form (as to amounts accrued but unpaid) shall survive any expiration or termination of this Agreement.

11.         Customer References.

Customer agrees that, during the term of this Agreement, Barrett Web Services may reference Customer in Barrett Web Services’ customer listings and may place Customer's name and logo on Barrett Web Services’ Web site and in collateral marketing materials relating to Barrett Web Services’ products and services. Customer hereby grants Barrett Web Services a right to use Customer's trademarks (name and logo only) designated by Customer for such limited uses, subject to Customer's trademark/logo usage guidelines, if any, provided by Customer to Barrett Web Services. With these limited exceptions, Barrett Web Services agrees that it may not use Customer's name, logo or any other trademarks (including in any press releases, customer "case studies," and the like) without Customer's prior consent.

12.         Miscellaneous.

This Agreement, including the Order Form and any other exhibits hereto, constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing signed by an authorized representative of each party. This Agreement shall be governed by and construed in accordance with the laws of the State of California exclusive of its conflict of laws principles. Notices under this Agreement shall be in writing, addressed to the party at its last-provided address, and shall be deemed given when delivered personally, or by e-mail (with confirmation of receipt) or conventional mail (registered or certified, postage prepaid with return receipt requested). Nothing contained in this Agreement is intended or is to be construed to constitute Barrett Web Services and Customer as partners or joint venturers or either party as an agent of the other. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect. All waivers of any rights or breach hereunder must be in writing to be effective, and no failure to enforce any right or provision shall be deemed to be a waiver of the same or other right or provision on that or any other occasion. Neither party may assign or otherwise transfer its rights and/or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, no consent shall be required for an assignment of this Agreement made pursuant to a merger, consolidation, or the acquisition of all or substantially all of the business and assets of a party. This Agreement will bind and inure to the benefit of the parties and their successors and permitted assigns.

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