{"id":42336,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/hosting-agreement-egain-communications-corp-and-eliance-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"hosting-agreement-egain-communications-corp-and-eliance-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/hosting-agreement-egain-communications-corp-and-eliance-corp.html","title":{"rendered":"Hosting Agreement &#8211; eGain Communications Corp. and Eliance Corp."},"content":{"rendered":"<pre>\n                        eGAIN COMMUNICATIONS CORPORATION\n\n                                HOSTING AGREEMENT\n\n      1. Hosting Agreement. This Agreement (including its Exhibit A and all\nother documents referenced herein) is entered into by eGain Communications\nCorporation (\"eGain\") and Eliance Corporation (\"Customer\") for the purpose of\nproviding Customer with Web-based access to eGain's software specified in\nExhibit A, including any updates, upgrades or revisions provided under this\nAgreement (\"Software\"), and certain other services relating to the processing of\nand response to online inquiries and messages (\"Online Messages\") received by\nCustomer from its customers and other users of Customer's Web site (\"Users\").\n\n      2. Provision of Services. eGain will provide Customer with access,\nmaintenance and related hosting services (\"Hosting Services\") to the Software\ninstalled on eGain's servers and other equipment (the \"eGain System\"). Customer\nagrees, as reasonably requested by eGain, to provide eGain with access to\nCustomer's premises and equipment and to otherwise cooperate with eGain in\nperforming the services. During the term of this Agreement, Customer may obtain\ninformation (\"Reports\") regarding Customer's use of the Software and the\nquantity and handling of Online Messages routed to the eGain System by accessing\nthe eGain System through a password-protected Web site made available by eGain.\nCustomer shall be responsible for maintaining the confidentiality of such\npasswords and shall permit only authorized employees of Customer to access the\neGain System. The Hosting Services, and the hosting fees specified in Exhibit A,\ndo not include any deployment, training or other consulting or professional\nservices which, if applicable, will be specified in a Statement of Work, signed\nby both parties, and incorporated herein by this reference.\n\n      2.1 Customer Support. eGain will provide live telephone support to\nCustomer 24-hours-a-day, seven-days-a-week by a trained eGain customer support\nrepresentative.\n\n      3. Customer's Responsibilities. Customer agrees that it shall be\nresponsible for providing and maintaining its own Internet access and all\nnecessary telecommunications equipment, software and other materials (\"Customer\nEquipment\") at Customer's location necessary for accessing the Software and the\neGain System through the Internet. Customer agrees to notify eGain of any\nchanges in the Customer Equipment, including any system configuration changes or\nany hardware or software upgrades, which may affect the Hosting Services\nprovided hereunder. The eGain System is only to be used for lawful purposes.\nCustomer agrees not to transmit, re-transmit or store materials on or through\nthe eGain System or the Software that are harmful to the eGain System or\nSoftware, or in violation of any applicable laws or regulations, including\nwithout limitation laws relating to infringement of intellectual property and\nproprietary rights of others. To the extent that certain components of the\nSoftware may be downloaded to Customer's or User's computer as a result of\naccessing the Software as part of the Hosting Services, eGain grants Customers a\nnon-exclusive, non-transferable, limited license, with right to sublicense\nsolely to Users, to use such Software only in connection with the Hosting\nServices. Neither Customer nor Users are otherwise permitted to use the\nSoftware, nor will Customer or Users disassemble, decompile or otherwise attempt\nto discern the source code of such Software. Customer agrees that, except as\nexpressly set forth in this Section and in Section 11, it will not rent, lease,\nsublicense, re-sell, time-share or otherwise assign to any third party this\nAgreement or any of Customer's rights or licenses to access the Software or the\neGain System, nor shall Customer use, or authorize others to use, the Software,\nHosting Services or the eGain System to operate a service bureau.\nNotwithstanding the preceding sentence, Customer shall be permitted to provide\naccess to the eGain System to its employees and agents located worldwide.\n\n      4. Proprietary Rights. Except for the limited access right granted to\nCustomer in this Agreement, all right, title and interest in and to the Software\n(including any and all modifications as a result of any implementation services\nrendered) and the eGain System are and shall remain the exclusive property of\neGain and its licensors. eGain acknowledges and agrees that the Online Messages\nare the property of Customer and that eGain has only a limited right to use the\nOnline Messages as set forth in the following sentence. Notwithstanding the\nforegoing, eGain may access and disclose the Online Messages solely as necessary\nto provide the Hosting Services, to operate and maintain its systems, to comply\nwith applicable laws and government orders and requests, and to protect itself\nand its customers.\n\n      5. Pricing and Payment. Customer agrees to pay the fees and other charges\nfor the Hosting Services and other services provided under this Agreement as\nspecified in Exhibit A of this Agreement. CUSTOMER AGREES TO PAY FOR HOSTING\nSERVICES ON OR BEFORE THE FIRST DAY OF THE MONTH IN WHICH THE HOSTING SERVICES\nARE PROVIDED, except that, with respect to Additional Fees (as defined in\nExhibit A), eGain will invoice Customer for such Fees in the month after the\nmonth in which such fees accrue as provided in Exhibit A. All amounts payable\nhereunder are exclusive of any and all taxes, and Customer is responsible for\npayment of such taxes (excluding taxes based on eGain's net income). All prices\nare stated, and Customer shall pay, in United States dollars. Payment received\nby eGain after the due date shall be subject to a late fee equal to one and\none-half percent (1.5%) per month, or, if less, the maximum amount allowed by\napplicable law. At the end of the initial one-year term of this Agreement and\nany subsequent one-year terms, eGain may adjust the monthly fee payable under\nthis Agreement by providing Customer written notice of such adjustment at least\nsixty (60) days prior to the beginning of the new term.\n\n      6. Limited Warranties; Disclaimer of Warranties.\n\n      6.1 eGain warrants and represents to Customer that (i) the Software will\nperform substantially in accordance with the documentation, if any, provided by\neGain to Customer, and (ii) the Hosting Services will be performed in a\nprofessional and workmanlike manner and in accordance with Section 2. In the\nevent of Downtime (as defined in this Section 6.1 below), as Customer's sole and\nexclusive remedy and eGain's sole and exclusive liability, the monthly fee\npayable for the Hosting Services shall be reduced as follows:\n\n      a) For the first sixty (60) minutes of Downtime during Normal Business\n      Hours or the first four (4) hours of Downtime outside of Normal Business\n      Hours (\"Initial Downtime\"), eGain will credit Customer's account for one\n      (1) day of service.\n\n      b) For each eight (8) hour period of Downtime per day in addition to the\n      Initial Downtime, eGain will credit Customer's account for one (1)\n      additional day of service.\n\nFor the purposes of this Agreement, \"Downtime\" shall mean any interruption in\nthe availability of Hosting Services to Customer (excluding scheduled\ninterruptions of which Customer is notified 48 hours in advanced), only if such\ninterruption is due either to: 1) an error in the Software, or 2) failure of the\neGain System (but not including problems associated with Internet connectivity).\nDowntime begins upon Customer notification to eGain of the interruption, either\n\n\n\n\n                        eGAIN COMMUNICATIONS CORPORATION\n\n                                HOSTING AGREEMENT\n\nby speaking directly with an eGain customer service representative or recording\na voice mail message in the eGain customer service voice mail box, and continues\nuntil the availability of the Hosting Services is restored to the Customer. For\npurposes of this Agreement, \"Normal Business Hours\" shall mean between the hours\nof 6:00 a.m to 6:00 p.m. Pacific time, Monday through Friday excluding national\nholidays.\n\nIn the event of a breach (other than Downtime) of the warranty set forth in\nSection 6.1(i) above, Customer's sole and exclusive remedy, and eGain's sole and\nexclusive liability shall be, at eGain's option, repair or replacement of the\nSoftware.\n\nTHE FOREGOING CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND eGAIN'S\nENTIRE LIABILITY, FOR DOWNTIME AND FOR BREACH OF THE HOSTING SERVICES WARRANTY\nPROVIDED IN THIS SECTION 6.1.\n\n      6.2 eGain represents and warrants that, prior to, during and after the\ncalendar year 2000 A.D., the Software and the eGain System will process,\ncalculate, manipulate, sort, store and transfer date data without material error\nor material performance degradation, including without limitation date data\nwhich represents or references different centuries or more than one century\n(such representation and warranty being referred to as \"Year 2000 Compliant\").\nIn the event that the Software or eGain System is not Year 2000 Compliant,\nCustomer's sole and exclusive remedy and eGain's sole and exclusive liability\nshall be for eGain, at no additional cost to Customer, to promptly modify the\nSoftware or the eGain System so that the Software or eGain System is Year 2000\nCompliant. The foregoing warranty is conditioned upon the Customer using the\nSoftware and\/or the eGain System in accordance with its applicable\nDocumentation, and on other software, hardware, network and systems (other than\nthe Software and the eGain System) with which the Software and\/or the eGain\nSystem interface or interoperate also being Year 2000 Compliant.\n\n      6.3 EXCEPT AS PROVIDED IN SECTIONS 6.1-6.2, (A) THE HOSTING SERVICES ARE\nPROVIDED, AND THE SOFTWARE AND THE eGAIN SYSTEM ARE MADE AVAILABLE, BY eGAIN TO\nCUSTOMER \"AS IS,\" AND (B) eGAIN AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND,\nWHETHER EXPRESS OR IMPLIED, REGARDING THE HOSTING SERVICES, THE SOFTWARE OR THE\neGAIN SYSTEM, AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY,\nFITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT\nPOSSIBLE BY LAW.\n\n      6.4 Without limiting the express warranties set forth in this Agreement,\neGain does not warrant that the Software, the eGain System or the Hosting\nServices will meet Customer's requirements (except as provided in Section 6.1)\nor that Customer's access to and use of the Software, the eGain System or the\nHosting Services will be uninterrupted or free of errors or omissions. eGain\ncannot and does not guarantee the privacy, security, authenticity and\nnon-corruption of any information transmitted through, or stored in any system\nconnected to, the Internet. eGain will use commercially reasonable efforts to\nadequately maintain, and upgrade as necessary, the eGain System to provide the\nHosting Services to its customers. However, except as expressly set forth\nherein, eGain shall not be responsible for any delays, errors, failures to\nperform, or disruptions in the Hosting Services caused by or resulting from any\nact, omission or condition beyond eGain's reasonable control.\n\n      7. Limitation of liability. EXCLUDING LIABILITY FOR INFRINGEMENT CLAIMS AS\nDISCUSSED IN SECTION 9 OF THIS AGREEMENT, IN NO EVENT SHALL eGAIN BE LIABLE TO\nCUSTOMER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES\n(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY\nFOR ANY DAMAGES WHATSOEVER, EVEN IF eGAIN HAS BEEN ADVISED OF THE POSSIBILITY OF\nSUCH DAMAGES. eGain's entire liability under this Agreement for any damages from\nany cause whatsoever, regardless of form or action, whether in contract,\nnegligence or otherwise, shall in no event exceed an amount equal to the price\npaid for the Services out of which the claim arose.\n\n      8. Confidential Information. Each party agrees to keep confidential and to\nuse only for purposes of performing (or as otherwise permitted under) this\nAgreement, any proprietary or confidential information of the other party\ndisclosed pursuant to this Agreement which is marked as confidential or which\nwould reasonably be considered of a confidential nature. The obligation of\nconfidentiality shall not apply to information which is publicly available\nthrough authorized disclosure, is known by the receiving party at the time of\ndisclosure as evidenced in writing, is rightfully obtained from a third party\nwho has the right to disclose it, or which is required by law, government order\nor request to be disclosed. Upon any termination of this Agreement, each party\nshall return to the other party all confidential information of the other party,\nand all copies thereof, in the possession, custody or control of the party\nunless otherwise expressly provided in this Agreement.\n\n      9. Indemnification. Subject to the limitations set forth in this Section\n9, eGain will defend any third-party suit or action against Customer to the\nextent such suit or action is based on a claim that the Software or the eGain\nSystem infringes any valid United States patent, copyright, trade secret or\nother proprietary right, and eGain will pay those damages and costs finally\nawarded against Customer in any monetary settlement of such suit or action which\nare specifically attributable to such claim. These obligations do not include\nany claims to the extent they are based on use of the Software or eGain System\nin violation of this Agreement or in combination with any other software or\nhardware, or any modification to the Software or eGain System pursuant to\nCustomer's specifications. If any portion of the Software or eGain System\nbecomes, or in eGain's opinion is likely to become, the subject of a claim of\ninfringement, then eGain may, at its option and expense, (a) procure for\nCustomer the right to continue using such Software or the eGain System, or (b)\nreplace or modify the Software or the eGain System so that it becomes\nnon-infringing. The indemnity obligations set forth in this Section 9 are\ncontingent upon: (i) Customer giving prompt written notice to the eGain of any\nsuch claim(s); (ii) eGain having sole control of the defense or settlement of\nthe claim; and (iii) at eGain's request and expense, Customer cooperating in the\ninvestigation and defense of such claim(s). THE FOREGOING STATES eGAIN'S ENTIRE\nLIABILITY FOR INFRINGEMENT CLAIMS.\n\n      10. Term and Termination.\n\n      10.1 Term and Termination. This Agreement shall continue in effect from\nthe Effective Date for a one (1) year period, unless earlier terminated as set\nforth below, and thereafter shall renew automatically for successive one (1)\nyear periods unless either party gives the other party at least thirty (30) days\nprior written notice of its intent not to renew the Agreement. In addition,\neither party may terminate this Agreement by giving to the other party written\nnotice\n\n\n\n\n                        eGAIN COMMUNICATIONS CORPORATION\n\n                                HOSTING AGREEMENT\n\nof such termination upon the other party's material breach of any material term\n(subject to the other party's right to cure within thirty (30) days after\nreceipt of such notice), the other party's insolvency, or the institution of any\nbankruptcy or similar proceedings by or against the other party.\n\n      10.2 Effect of Termination. Upon any termination of this Agreement, eGain\nshall immediately cease providing all Hosting Services, and Customer shall no\nlonger have access to the Software or the eGain System. Except in the event of\ntermination for Customer's breach, eGain shall provide Customer with an\nelectronic copy of the final Reports (covering the month just prior to\ntermination of this Agreement). eGain shall be entitled to retain a copy\n(whether electronic or otherwise) of the Online Messages and the Reports for its\nrecords and internal purposes and shall not disclose such Online Messages or\nReports to any third party except as permitted under Section 4. Within fifteen\n(15) days of any termination of this Agreement, Customer shall pay to eGain all\nunpaid fees accrued prior to termination. Sections 4, 5 (as to amounts accrued\nbut unpaid), 7, 8, 10.2 and 12 and Exhibit A (as to amounts accrued but unpaid)\nshall survive any expiration or termination of this Agreement.\n\n      11. Customer References. Customer agrees that, during the term of this\nAgreement, eGain may reference Customer in eGain's customer listings and may\nplace Customer's name and logo on eGain's Web site and in collateral marketing\nmaterials relating to eGain's products and services. Customer hereby grants\neGain a right to use Customer's trademarks (name and logo only) designated by\nCustomer for such limited uses, subject to Customer's trademark\/logo usage\nguidelines, if any, provided by Customer to eGain. With these limited\nexceptions, eGain agrees that it may not use Customer's name, logo or any other\ntrademarks (including in any press releases, customer \"case studies,\" and the\nlike) without Customer's prior consent.\n\n      12. Miscellaneous. This Agreement, including Exhibit A and any other\nexhibits hereto, constitutes the entire agreement of the parties, and supersedes\nany prior or contemporaneous agreements between the parties, with respect to the\nsubject of this Agreement. Except as otherwise expressly provided herein, this\nAgreement may be modified only by a writing signed by an authorized\nrepresentative of each party. This Agreement shall be governed by and construed\nin accordance with the laws of the State of California exclusive of its conflict\nof laws principles. Notices under this Agreement shall be in writing, addressed\nto the party at its last-provided address, and shall be deemed given when\ndelivered personally, or by e-mail (with confirmation of receipt) or\nconventional mail (registered or certified, postage prepaid with return receipt\nrequested). Nothing contained in this Agreement is intended or is to be\nconstrued to constitute eGain and Customer as partners or joint venturers or\neither party as an agent of the other. If any provision of this Agreement shall\nbe declared invalid, illegal or unenforceable, all remaining provisions shall\ncontinue in full force and effect. All waivers of any rights or breach hereunder\nmust be in writing to be effective, and no failure to enforce any right or\nprovision shall be deemed to be a waiver of the same or other right or provision\non that or any other occasion. Neither party may assign or otherwise transfer\nits rights and\/or obligations under this Agreement without the prior written\nconsent of the other party. Notwithstanding the foregoing, no consent shall be\nrequired for an assignment of this Agreement made pursuant to a merger,\nconsolidation, or the acquisition of all or substantially all of the business\nand assets of a party. This Agreement will bind and inure to the benefit of the\nparties and their successors and permitted assigns. \n\n      Each party agrees to the terms and conditions contained in this Agreement.\n\n                        Customer: Eliance Corporation\n\n                        Name:\/s\/                                 Title:\n                             ___________________________               _________\n\n                        Signature:______________________         Date:__________\n\n\n                        eGain Communications Corporation:\n\n                        Name:\/s\/                                 Title:\n                             ___________________________               _________\n\n                        Signature:______________________         Date:__________\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9302],"corporate_contracts_industries":[],"corporate_contracts_types":[9613,9620],"class_list":["post-42336","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-webhelpcom-inc","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42336","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42336"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42336"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42336"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42336"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}