eGAIN COMMUNICATIONS CORPORATION
HOSTING AGREEMENT
1. Hosting Agreement. This Agreement (including its Exhibit A and all
other documents referenced herein) is entered into by eGain Communications
Corporation ("eGain") and Eliance Corporation ("Customer") for the purpose of
providing Customer with Web-based access to eGain's software specified in
Exhibit A, 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. eGain will provide Customer with access,
maintenance and related hosting services ("Hosting Services") to the Software
installed on eGain's servers and other equipment (the "eGain System"). Customer
agrees, as reasonably requested by eGain, to provide eGain with access to
Customer's premises and equipment and to otherwise cooperate with eGain 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 eGain System by accessing
the eGain System through a password-protected Web site made available by eGain.
Customer shall be responsible for maintaining the confidentiality of such
passwords and shall permit only authorized employees of Customer to access the
eGain System. The Hosting Services, and the hosting fees specified in Exhibit A,
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. eGain will provide live telephone support to
Customer 24-hours-a-day, seven-days-a-week by a trained eGain 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
eGain System through the Internet. Customer agrees to notify eGain 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 eGain System is only to be used for lawful purposes.
Customer agrees not to transmit, re-transmit or store materials on or through
the eGain System or the Software that are harmful to the eGain 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, eGain 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
eGain System, nor shall Customer use, or authorize others to use, the Software,
Hosting Services or the eGain System to operate a service bureau.
Notwithstanding the preceding sentence, Customer shall be permitted to provide
access to the eGain 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 eGain System are and shall remain the exclusive property of
eGain and its licensors. eGain acknowledges and agrees that the Online Messages
are the property of Customer and that eGain has only a limited right to use the
Online Messages as set forth in the following sentence. Notwithstanding the
foregoing, eGain 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 Exhibit A of this Agreement. CUSTOMER AGREES TO PAY FOR HOSTING
SERVICES ON OR BEFORE THE FIRST DAY OF THE MONTH IN WHICH THE HOSTING SERVICES
ARE PROVIDED, except that, with respect to Additional Fees (as defined in
Exhibit A), eGain will invoice Customer for such Fees in the month after the
month in which such fees accrue as provided in Exhibit A. All amounts payable
hereunder are exclusive of any and all taxes, and Customer is responsible for
payment of such taxes (excluding taxes based on eGain's net income). All prices
are stated, and Customer shall pay, in United States dollars. Payment received
by eGain 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, eGain may adjust the monthly 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 eGain warrants and represents to Customer that (i) the Software will
perform substantially in accordance with the documentation, if any, provided by
eGain 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 eGain's 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"), eGain 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, eGain 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
eGain System (but not including problems associated with Internet connectivity).
Downtime begins upon Customer notification to eGain of the interruption, either
eGAIN COMMUNICATIONS CORPORATION
HOSTING AGREEMENT
by speaking directly with an eGain customer service representative or recording
a voice mail message in the eGain customer service voice mail box, 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 6:00 a.m to 6:00 p.m. Pacific 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 eGain's sole and
exclusive liability shall be, at eGain's option, repair or replacement of the
Software.
THE FOREGOING CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND eGAIN'S
ENTIRE LIABILITY, FOR DOWNTIME AND FOR BREACH OF THE HOSTING SERVICES WARRANTY
PROVIDED IN THIS SECTION 6.1.
6.2 eGain represents and warrants that, prior to, during and after the
calendar year 2000 A.D., the Software and the eGain System will process,
calculate, manipulate, sort, store and transfer date data without material error
or material performance degradation, including without limitation date data
which represents or references different centuries or more than one century
(such representation and warranty being referred to as "Year 2000 Compliant").
In the event that the Software or eGain System is not Year 2000 Compliant,
Customer's sole and exclusive remedy and eGain's sole and exclusive liability
shall be for eGain, at no additional cost to Customer, to promptly modify the
Software or the eGain System so that the Software or eGain System is Year 2000
Compliant. The foregoing warranty is conditioned upon the Customer using the
Software and/or the eGain System in accordance with its applicable
Documentation, and on other software, hardware, network and systems (other than
the Software and the eGain System) with which the Software and/or the eGain
System interface or interoperate also being Year 2000 Compliant.
6.3 EXCEPT AS PROVIDED IN SECTIONS 6.1-6.2, (A) THE HOSTING SERVICES ARE
PROVIDED, AND THE SOFTWARE AND THE eGAIN SYSTEM ARE MADE AVAILABLE, BY eGAIN TO
CUSTOMER "AS IS," AND (B) eGAIN AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, REGARDING THE HOSTING SERVICES, THE SOFTWARE OR THE
eGAIN SYSTEM, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT
POSSIBLE BY LAW.
6.4 Without limiting the express warranties set forth in this Agreement,
eGain does not warrant that the Software, the eGain 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 eGain System or the
Hosting Services will be uninterrupted or free of errors or omissions. eGain
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. eGain will use commercially reasonable efforts to
adequately maintain, and upgrade as necessary, the eGain System to provide the
Hosting Services to its customers. However, except as expressly set forth
herein, eGain 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 eGain's reasonable control.
7. Limitation of liability. EXCLUDING LIABILITY FOR INFRINGEMENT CLAIMS AS
DISCUSSED IN SECTION 9 OF THIS AGREEMENT, IN NO EVENT SHALL eGAIN 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 eGAIN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. eGain's 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, eGain 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 eGain
System infringes any valid United States patent, copyright, trade secret or
other proprietary right, and eGain 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 eGain System
in violation of this Agreement or in combination with any other software or
hardware, or any modification to the Software or eGain System pursuant to
Customer's specifications. If any portion of the Software or eGain System
becomes, or in eGain's opinion is likely to become, the subject of a claim of
infringement, then eGain may, at its option and expense, (a) procure for
Customer the right to continue using such Software or the eGain System, or (b)
replace or modify the Software or the eGain 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 eGain of any
such claim(s); (ii) eGain having sole control of the defense or settlement of
the claim; and (iii) at eGain's request and expense, Customer cooperating in the
investigation and defense of such claim(s). THE FOREGOING STATES eGAIN'S ENTIRE
LIABILITY FOR INFRINGEMENT CLAIMS.
10. Term and Termination.
10.1 Term and Termination. This Agreement shall continue in effect from
the Effective Date for a one (1) year period, unless earlier terminated as set
forth below, and thereafter shall renew automatically for successive one (1)
year periods unless either party gives the other party at least thirty (30) days
prior written notice of its intent not to renew the Agreement. In addition,
either party may terminate this Agreement by giving to the other party written
notice
eGAIN COMMUNICATIONS CORPORATION
HOSTING AGREEMENT
of such termination upon the other party's material breach of any material term
(subject to the other party's right to cure within thirty (30) days after
receipt of such notice), the other party's insolvency, or the institution of any
bankruptcy or similar proceedings by or against the other party.
10.2 Effect of Termination. Upon any termination of this Agreement, eGain
shall immediately cease providing all Hosting Services, and Customer shall no
longer have access to the Software or the eGain System. Except in the event of
termination for Customer's breach, eGain shall provide Customer with an
electronic copy of the final Reports (covering the month just prior to
termination of this Agreement). eGain 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 eGain all
unpaid fees accrued prior to termination. Sections 4, 5 (as to amounts accrued
but unpaid), 7, 8, 10.2 and 12 and Exhibit A (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, eGain may reference Customer in eGain's customer listings and may
place Customer's name and logo on eGain's Web site and in collateral marketing
materials relating to eGain's products and services. Customer hereby grants
eGain 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 eGain. With these limited
exceptions, eGain 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 Exhibit A 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 eGain 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.
Each party agrees to the terms and conditions contained in this Agreement.
Customer: Eliance Corporation
Name:/s/ Title:
___________________________ _________
Signature:______________________ Date:__________
eGain Communications Corporation:
Name:/s/ Title:
___________________________ _________
Signature:______________________ Date:__________
Hosting Agreement - eGain Communications Corp. and Eliance Corp.
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