Phone.: +1 682-498-3508
Email: staff@vblogic.net
Legal Terms:
Application Hosting Agreement
THIS APPLICATION HOSTING AGREEMENT ("Agreement") is made and entered into on this xxth day of xxxx, 20xx
(the "Effective Date") by and between xxxxxxxxxx ("Client")
and vbLogic Business Development, Inc., a Texas corporation ("vbLogic Business Development").
WHEREAS, vbLogic Business Development provides an online orientation application (the “Application”) and online Application hosting services (the "Hosting Services") to make the Application accessible by users through the Internet.
WHEREAS, Client desires to obtain access to the Application via the Hosting Services.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the parties as set forth in this
Agreement, the parties hereby agree as follows:
1. Provision of Application Hosting Services Subject to the terms and conditions of this Agreement, vbLogic Business Development hereby agrees to
provide to Client the nonexclusive use of the Application and the Hosting Services described in Exhibit “A”, Scope of Work:
1.1 Availability: vbLogic Business Development shall provide access to the Application via the Internet and the Hosting Services, with such access being provided approximately 24 hours per day, with allowable significant downtime only for normal
maintenance and upgrades, and other causes that are beyond the reasonable control of a well-managed business.
Whenever possible, vbLogic Business Development will communicate expected downtimes to Client in advance.
1.2 Unexpected Downtime Credit: Despite the efforts of vbLogic Business Development, functionality of the Client site may decrease from time to time, and may become partially or completely unavailable. In such event, vbLogic Business Development will work to restore the Client site to its normal operating functionality as rapidly as possible. If functionality of
the Client site is impaired to any degree that makes the Application materially unavailable, the duration
of such unavailability shall be considered "downtime." Subject to Section 1.1 above, upon request of Client
and validation by vbLogic Business Development, Client will accrue one day of credit for each hour of downtime. Credit shall be
applied to the next statement.
1.3 Contingency/Backup: vbLogic Business Development will perform and retain onsite and offsite backups of the Application and all associated data files daily and following any significant changes that are made to the Application.
1.4 Security/Privacy: Access to the Application is limited to users with valid username/password. Data entered
and displayed on the Application may be secured, at the Client’s discretion, using standard SSL encryption.
vbLogic Business Development will not share or disclose information related to Client’s use of the Application, and will comply with all applicable state and federal laws related to the protection and privacy of student records, including those
set forth in the Federal Educational Rights Act (FERPA).
2. Fees and Payment
2.1 Application and Hosting Services Fee: In exchange for providing the Application and the Hosting Services,
Client shall pay the fees set forth in Exhibit “B”. Client shall, to the extent consistent with the Texas Prompt
Payment Act (Tex. Gov’t Code Sec. 2251.021) pay all charges owed under this Agreement within 60 days of the date
of invoice (“Due Date”). Client shall pay interest on overdue payments at the rate of 1.5% per month or the date
of invoice (“Due Date”). Client shall pay interest on overdue payments at the rate of 1.5% per month or the
maximum-rate allowable by law, whichever is lower. If Client does not pay an invoice within 15 days of Due Date,
vbLogic Business Development reserves the right to disconnect Hosting Services. As a reasonable estimate of vbLogic Business Development’s actual damages, Client agrees to pay a fifty dollar ($50.00) service fee on any checks returned by Client’s bank.
2.2 Additional Charges: The Application and Hosting Services fee shall be solely for provision of the Application
and for the Hosting Services described in Exhibit A. All other services will incur additional charges, and must
be agreed upon in advance and in writing (email acknowledgement is acceptable) prior to commencement of
additional work.
3. Representations and Warranties
3.1 Client represents and warrants to vbLogic Business Development that: (a) Client owns or has the right to use all Client content
contained in the Application; and (b) the use, reproduction, distribution, and transmission of the Client content
does not (i) infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary
rights of a third party; (ii) violate any criminal laws; (iii) constitute false advertising, unfair competition,
defamation, an invasion of privacy, violate a right of publicity, or violate any other federal, state or local
law or regulation.
3.2 Client acknowledges the terms of the Digital Millennium Copyright Act of 1998 and the obligations on the
part of vbLogic Business Development in the event it receives a notice from any third party that the Application or Client content
infringes upon the rights of any third party. Client consents to vbLogic Business Development following the procedures outlined in
the Act in the event of a claimed infringement. Client understands and agrees that vbLogic Business Development’s compliance with the Act may result in the Application being taken off line. Client agrees to indemnify and hold vbLogic Business Development harmless from and against any and all damages that may result from the vbLogic Business Development’s good faith compliance with the terms of the Act.
3.3 Client shall not copy or use any of vbLogic Business Development’s Confidential Information except as reasonably required to
perform its duties hereunder, and shall only disclose such information to those employees, subcontractors,
and agents that have a "need to know" such information to perform their duties. For purposes of this Agreement,
"Confidential Information" shall mean any competitively sensitive or secret business, marketing, or technical
information of either party that is designated as confidential by a party. Confidential Information shall not
include, however, information that is: (1) generally known to the public or readily ascertainable from public
sources (other than as a result of a breach of confidentiality); (2) independently developed without reference
to or reliance on any Confidential Information of vbLogic Business Development, as demonstrated by written records (which shall be provided upon request); or (3) obtained by Client from an independent third party who has created or acquired
such information without reference to or reliance on Confidential Information of vbLogic Business Development, as demonstrated by written records (which shall be provided upon request). If Client is legally required to disclose vbLogic Business Development’s
Confidential Information, Client shall, to the extent allowed by law, promptly give vbLogic Business Development written notice of
the requirement so as to provide Client a reasonable opportunity to pursue appropriate process to prevent or
limit the disclosure. If Client complies with the terms of this Section 3.3, disclosure by Client of that
portion of vbLogic Business Development’s Confidential Information which Client is legally required to disclose will not constitute
a breach of this Agreement. Client is not required to pursue any claim, defence, cause of action, or legal
process or proceeding on vbLogic Business Development’s behalf.
3.4 vbLogic Business Development represents and warrants that the electronic and information resources and all associated information, documentation, and support that it provides to Client under this Agreement (collectively, the “EIRs”) comply
with the applicable requirements set forth in Title 1, Chapter 213 of the Texas Administrative Code and Title 1,
Chapter 206, §206.70 of the Texas Administrative Code (as authorized by Chapter 2054, Subchapter M of the
Texas Government Code). To the extent vbLogic Business Development becomes aware that the EIRs, or any portion thereof, do not comply, then vbLogic Business Development shall, at no cost to Client, either (1) perform all necessary re-mediation or (2) replace the EIRs with new EIRs.
4. Content and Data
4.1 Removal of Unacceptable Content: vbLogic Business Development has the right to monitor the Application's use by Client, and in its sole discretion to remove any content, with reasonable prior notice to Client.
4.2 Proprietary Content: Except for the non-exclusive licenses granted herein, Client has no right, title
or interest in or to the Application or any related content or source code.
4.3 Protected Information
(a) “Protected Information” means employment records, medical records, education records, personal financial
records (or other individually identifiable information), research data, classified government information,
and other data that has been designated as private, protected, or confidential by law or by Client.
“Protected Information” does not include public records that by law must be made available to the general
public. If vbLogic Business Development is uncertain as to whether any data constitutes Protected Information, vbLogic Business Development shall treat the data in question as Protected Information until a determination is made by Client.
(c) vbLogic Business Development shall hold Protected Information in strict confidence. vbLogic Business Development may not use or disclose Protected Information received from or on behalf of Client except as permitted or required by this Agreement, as
required by law, or as otherwise authorized in writing by Client. vbLogic Business Development may not use Protected Information
for any purpose other than the purpose for which the disclosure was made. vbLogic Business Development may allow only vbLogic Business Development’s employees who have a legitimate business need in performing this Agreement to have access to Protected Information.
(d) Upon termination of this Agreement, and upon request from Client, vbLogic Business Development shall return all Protected
Information to Client within 30 days or, if return is not feasible, destroy all Protected Information.
Within seven days after destruction, vbLogic Business Development shall confirm to Client in writing the destruction of
Protected Information.
(e) If Client reasonably determines in good faith that vbLogic Business Development has materially breached any of its
confidentiality obligations under this Agreement or has violated FERPA, Client, in its sole discretion,
may require vbLogic Business Development to submit to a plan of monitoring and reporting; provide vbLogic Business Development with a 15-day period to cure the breach; or terminate this Agreement immediately. Before exercising any of these options, Client
shall provide written notice to vbLogic Business Development describing the violation and the action it intends to take.
(f) vbLogic Business Development shall develop, implement, maintain, and use appropriate administrative, technical, and physical
security measures to preserve the confidentiality, integrity and availability of all electronically maintained
or transmitted Protected Information received from, or on behalf of Client. vbLogic Business Development shall extend these measuresby contract to all subcontractors used by vbLogic Business Development.
(g) vbLogic Business Development shall, within one day of discovery, report to Client any
use or disclosure of Protected Information not authorized by this Agreement or in writing by Client.
vbLogic Business Development’s report shall identify: (1) the nature of the unauthorized use or disclosure, (2) the Protected
Information used or disclosed, (3) who made the unauthorized use or received the unauthorized disclosure,
(4) what vbLogic Business Development has done or will do to mitigate any deleterious effect of the unauthorized use or disclosure, and (5) what corrective action vbLogic Business Development has taken or will take to prevent future similar unauthorized use or
disclosure. vbLogic Business Development shall provide such other information, including a written report, as reasonably requested
by Client.
(h) vbLogic Business Development shall defend and indemnify Client from all claims, liabilities, damages, or judgments
involving a third party, including Client’s costs and attorneys’ fees, which arise as a result of vbLogic Business Development’s
failure to meet or breach any of its obligations under this provision.
(i) The restrictions and obligations under this provision will survive expiration or termination of this Agreement for any reason.
5. Limitations of Warranties and Liability
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, vbLogic Business Development DISCLAIMS ANY AND ALL
EXPRESS AND IMPLIED WARRANTIES. EXCEPT FOR CLAIMS THAT THE APPLICATION INFRINGES THE INTELLECTUAL PROPERTY OF A THIRD PARTY, vbLogic Business Development WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR DAMAGES, OR, EXCEPT AS SET FORTH IN THIS AGREEMENT, FOR CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT WILL vbLogic Business Development's
LIABILITY EXCEED THE TOTAL ACTUALLY PAID BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AS DEFINED IN THIS AGREEMENT.
6. Indemnification Client agrees, to the extent
authorized under Texas law, to indemnify and hold harmless vbLogic Business Development and its agents, affiliates, successors, and assigns from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable
attorney fees and experts' fees, associated with any claim or action (whether or not any action or administrative
proceeding is actually filed) against vbLogic Business Development and its agents, affiliates, successors, and assigns related to or
arising out of Client's actions or content. vbLogic Business Development shall promptly notify Client of any such claim, shall provide reasonable assistance in connection with the defense and/or settlement thereof, and shall permit Client to control
the defence and/or settlement thereof. vbLogic Business Development warrants that neither the Application nor the Hosting Services will infringe any intellectual property, privacy, or other right of any party. If vbLogic Business Development becomes aware of any such possible infringement, vbLogic Business Development shall immediately so notify Client in writing. vbLogic Business Development shall indemnify and defend Client,
7. Term and Termination
7.1 Term: This Agreement
will take effect on the Effective Date and remain in effect for a period of 1 (one) year, and will automatically
continue on a year-to-year basis thereafter not to exceed a total of five years, unless sooner terminated pursuant
to the terms hereof.
7.2 Termination: Either Party may terminate this Agreement, with or without cause, upon 30
days prior written notice to the other party. Termination of this Agreement by Client prior to the end of the
term hereof shall not obligate vbLogic Business Development to reimburse Client for prepaid fees.
7.3 Effect of Termination: Upon
any termination of this Agreement both parties will immediately destroy or erase any proprietary content or
data as requested. A confirmation of such removal may also be requested by signing and returning an
“affidavit of destruction” detailing what and how such content and data were erased.
8. Miscellaneous
8.1 The relationship of vbLogic Business Development and Client established by this Agreement is solely that of independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship
between the parties.
8.2 This Agreement may be amended at any time and from time to time, but any amendment must
be in writing and signed by each Party to be bound.
8.3 Performance of this Agreement by each party shall be
pursued with due diligence in all requirements hereof; however, neither party shall be liable for any loss or
damage for delay or nonperformance due to causes not reasonably within the control of a well-managed business.
Such acts or causes shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war,
governmental regulations superimposed after the fact, earthquakes, or other catastrophes. In the event of any
delay resulting from such causes, the time for performance and payment hereunder shall be extended for a period
of time reasonably necessary to overcome the effect of such delays. In the event of any delay or non-performance
caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the
nature, cause, date of commencement thereof, and the anticipated extent of such delay, and shall indicate whether
it is anticipated that the completion dates would be affected thereby.
8.4 This Agreement is a negotiated document
and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation
shall apply against any particular Party based on a contention that the Agreement was drafted by one of the
Parties.
8.5 If any term, provision, covenant, or condition of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and
shall in no way be affected or invalidated.
8.6 This Agreement, including all Exhibits, Schedules, Appendices,
and Attachments, contains the entire agreement of the Parties relating to the rights granted and obligations
assumed herein. Any oral representations or modifications concerning this instrument shall be of no force or
effect unless contained in a subsequent written modification signed by the Party to be charged.
8.7 INTENTIONALLY OMITTED
8.8 In any action brought under this Agreement, the prevailing party shall, to the
extent authorized under Texas law, be entitled to recover its actual costs and attorney fees and all other
litigation costs, including expert witness fees, and all actual attorney fees and litigation costs incurred
in connection with the enforcement of a judgement arising from such action or proceeding. The provisions of
the preceding sentence shall be severable from the provisions of this Agreement and shall survive the entry of
any such judgement.
8.9 In the event of a dispute between the parties, which they are not able to resolve
themselves, the parties agree to submit the dispute to a mediation service reasonably accepted by each party.
Each party shall pay one half of the mediation fees and costs.
8.10 By signing below, you acknowledge that
you are an adult of 18 years or older and you have reviewed and accept the terms and conditions contained
in this Agreement and any applicable addenda thereto. You accept the Hosting Services ordered, authorize
vbLogic Business Development to set-up and provide the Hosting Services, and acknowledge that vbLogic Business Development will commence processing the order and incur expenses and obligations immediately.
8.11 Pursuant to Section 2252.903, Texas Government Code,
any payments owing to vbLogic Business Development under this Agreement may be applied directly toward certain debts or delinquencies that vbLogic Business Development owes the State of Texas or any agency of the State of Texas regardless of when they arise, until such debts or delinquencies are paid in full.
8.12 A child support obligor who is more than 30 days delinquent
in paying child support and a business entity in which the obliger is a sole proprietor, partner, shareholder,
or owner with an ownership interest of at least 25% is not eligible to receive payments from state funds under
an agreement to provide property, materials, or services until all arrearage have been paid or the obliger
is in compliance with a written repayment agreement or court order as to any existing delinquency. The Texas
Family Code requires the following statement: “Under Section 231.006, Texas Family Code, the vendor or applicant
certifies that the individual or business entity named in this contract, bid, or application is not ineligible to
receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may
be withheld if this certification is inaccurate.”
8.13 vbLogic Business Development acknowledges that Client is obligated to strictly
comply with the Public Information Act, Chapter 552, Texas Government Code, in responding to any request for
public information pertaining to this Agreement, as well as any other disclosure of information required by
applicable Texas law. Upon Client’s written request, vbLogic Business Development shall provide specified public information exchanged
or created under this Agreement that is not otherwise excepted from disclosure under Chapter 552, Texas Government
Code, to Client in a non-proprietary format acceptable to Client. As used in this provision, “public information”
has the meaning assigned Section 552.002, Texas Government Code, but only includes information to which Client
has a right of access. vbLogic Business Development acknowledges that Client may be required to post a copy of this fully-executed Agreement on its Internet website in compliance with Section 2261.253(a)(1), Texas Government Code. IN WITNESS
WHEREOF, the parties have executed this Agreement on the date first set forth above intending to be legally
bound by the terms hereof.