ResCMS Hosted Services Agreement

Blue Tent Marketing, LLC / ResCMS™

HOSTED SERVICES AGREEMENT

This Hosted Services Agreement (“Agreement”) is entered into as of the Effective Date (as defined below) by and between Blue Tent Marketing, Inc., a Colorado corporation (“Blue Tent Marketing”), having a primary place of business at 218 East Valley Road, Carbondale, CO and you, the “Customer”, to provide the terms and conditions under which Blue Tent Marketing will provide Customer with certain hosted services (the “Service”) for use by Customer in its marketing activities, for the purpose of creating and maintaining a website and online vacation product information and reservation service.

1. Use of Services

Subject to the terms of this Agreement, Blue Tent Marketing grants to Customer the non-transferable, non-exclusive worldwide right to permit those individuals authorized by Customer or on Customer’s behalf as further provided in clause (vi) below (“Users”) to use the Customer Site and Service and any materials provided or disclosed to Customer by Blue Tent Marketing in the course of providing the Service (“ResCMS Materials”) solely in connection with the Service, all solely for Customer’s own internal business operations.

2. Customer Rights and Restrictions

The rights granted to Customer in this Agreement are subject to all of the following agreements and restrictions:

During the Term of this Agreement, Blue Tent Marketing will grant the Customer access to the Service.
Customer will have access to Support and Maintenance services as defined below.
Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, use on a timesharing basis, disclose or otherwise commercially exploit or make the Customer Site or Service available to any third party other than a User.
Customer shall not, nor shall it attempt or permit any third party to, modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service, Customer Site, ResCMS Materials or Blue Tent Marketing’s computer hardware, software, or system through which Blue Tent Marketing provides the Service (“Host System”), or access or use the Service, Customer Site, ResCMS Materials or Host System in order to build a similar or competitive product or service.
Other than Customer Data and Customer Trademarks (each as defined below), or as otherwise expressly stated herein, no part of the Service, Customer Site, ResCMS Materials or Host System may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.
Customer will ensure that any use of the Service by Customer’s Users is in accordance with the terms of this Agreement. Further, Customer and its Users shall maintain the security of all User names and passwords (collectively, “User Codes”) used to access the Service. Customer may designate as Users only (a) Customer’s employees and (b) Customer’s independent contractors with whom Customer has entered into written agreements with respect to such contractors’ use of the Service with terms no less restrictive or protective of Blue Tent Marketing’s rights than the terms of this Agreement. Customer acknowledges and agrees that Customer is responsible for all access to and use of the Service by Users or by means of the User Codes. Customer further agrees to make every reasonable effort to prevent unauthorized third parties, including Customer employees who are not Users, from accessing or using the Service, the ResCMS Materials or the Host System.
Customer is solely responsible for obtaining and maintaining the necessary software, hardware, Internet connection, and other systems in order to access and use the Service.
Customer may not disseminate or transmit any material that is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or harms minors in any way;
Customer may not disseminate or transmit any material that infringes any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
Customer may not disseminate or transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, surveys, contests, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
Customer may not disseminate or transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
Customer may not disseminate or transmit any material that otherwise may: (i) constitute a criminal offense; (ii) give rise to civil liability; or (iii) violate applicable law, rule or regulation.
Customer shall include a permanent, functional and clearly visible “Powered by ResCMS” link on all homepages and all translations of homepages on sites hosted via the Service providing a link to Service information on the rescms.com website.

3. Certain Blue Tent Marketing Rights

3.1 Customer acknowledges and agrees that (i) as between the parties, Blue Tent Marketing owns all right, title and interest, including all intellectual property and other proprietary rights, in and to the Service, the ResCMS Materials and the Host System and (excluding the Customer Data) the Customer Site, including all derivatives, modifications and improvements of any of these (collectively, the “Blue Tent Marketing IP”); and (ii) if Customer provides to Blue Tent Marketing any suggestions, enhancement requests, feedback, recommendations or other information relating to the Service (“Feedback”), Blue Tent Marketing is free to use and incorporate, as its discretion, the Feedback into the Service without compensation or liability of any kind to Customer or any third party.

3.2 The technology, process and methodologies used to provide services are Blue Tent Marketing’s IP service and as such all rights to any copyrights, patents or other intellectual property are the properties of Blue Tent Marketing. Blue Tent Marketing may develop and license any products or services similar to this project without any restrictions.

3.3 CUSTOMER maintains all rights to any data in the systems related to this project, the website or the systems. This data is available for download or transfer at any time.

3.4 Blue Tent Marketing reserves the right, from time to time and at its discretion, to update, enhance, and otherwise modify the Blue Tent Marketing IP [provided that Blue Tent Marketing will use commercially reasonable efforts to provide Customer no less than twenty-four (24) hours prior notice (which may be by notice displayed on the Service) of any change that Blue Tent Marketing believes would materially affect Customer’s use of the Service].

4. Licenses from Customer

4.1 Customer grants to Blue Tent Marketing the non-exclusive, worldwide right to use, copy, transmit and display:

i) Any data, information or other materials, provided to Blue Tent Marketing by Customer in the course of using the Service (“Customer Data”) solely to the extent necessary to provide the Service to Customer ; and

ii) Any trademarks that Customer provides Blue Tent Marketing for the purpose of including them in Customer’s user interface of the Service (“Customer Trademarks”) to be developed by Blue Tent Marketing pursuant to a separate Services Agreement.

4.2 Customer acknowledges and agrees that Customer Data may be transferred outside of the country or other jurisdiction where Customer and Customer’s Users are located. In addition, Customer acknowledges and agrees that it is Customer’s obligation to inform third parties of the processing of Customer Data and to ensure that such third parties have given any required consent to such processing as required by all applicable data protection legislation. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of use on the Service of all Customer Data. Blue Tent Marketing may identify Customer as a Customer in its marketing and advertising materials, and announce that Customer is a Customer of the Service, and reproduce Customer’s company name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith.

5. Billing and Payment

5.1 The fees for the Services are described in writing at time of purchase. Customer agrees to pay in advance all monthly or annual fees for Customer use of the Service (“Fees”), and any other fees shall be payable as described at the setup of the Service. The Customer shall pay all fees or charges at the time a fee or charge is due and payable.

5.2 The charges will be equal to the amount of the license fee currently in effect of $__________________ annually/monthly (circle one). Payments may be made annually, monthly, or quarterly, consistent with the Initial Term, or as otherwise mutually agreed upon in writing. Following the Initial Term, charges shall be due and payable on a monthly basis.

5.3 Blue Tent Marketing reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.

6. Non-Payment and Suspension

6.1 In addition to any other rights granted to Blue Tent Marketing herein, Blue Tent Marketing reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if account becomes delinquent by more than 30 days. Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.

6.2 Customer will continue to be charged for User licenses during any period of suspension. If Customer or Blue Tent Marketing initiates termination of this Agreement, Customer will be obligated to pay the balance due on account. Blue Tent Marketing reserves the right to impose a reconnection fee in the event Customer’s account is suspended and thereafter request access to the Service. Customer agrees and acknowledges that Blue Tent Marketing has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

7. Term and Termination

7.1 This Agreement is effective upon the Effective Date and will remain in effect during the Initial Term. Customer’s subscription to the Service will renew upon Customer’s payment of the applicable renewal Monthly Fees as described in Section 5 above.

7.2 Customer may terminate this Agreement at any time upon fifteen (15) days written notice to Blue Tent Marketing regarding termination. Customer shall be entitled to a pro-rated refund of the Fees paid proportionate to the time remaining in the Service Period on the Termination date.

7.3 If Customer violates any provision of this Agreement, Blue Tent Marketing may terminate this Agreement upon thirty (30) days notice of termination if Customer has not resolved the violation within thirty (30) days of being notified of the violation. Blue Tent Marketing may suspend the Customer’s use of the Service or terminate this Agreement for accounts with unpaid Fees more than 30 days after the Due Date.

8. Third Party Web Sites

If Customer enters into correspondence with, purchases goods or services from, or participates in promotions of advertisers or sponsors other than Blue Tent Marketing through the Customer Site or the Service, any such activity, and any terms, conditions, warranties or representations associated with such activity, is governed solely by the terms between Customer and the applicable third party. Blue Tent Marketing shall have no liability or obligation for, and does not endorse or accept any responsibility for, the contents or use of third party web sites or any transactions completed with third parties.

9. Representations and Warranties

Each party represents and warrants that it has the power and authority to enter into this Agreement. Blue Tent Marketing warrants that (a) it will provide the Service and the Set-Up Services in a manner consistent with generally accepted industry standards, and (b) the Service will perform substantially in accordance with its online documentation under normal use.

10. Disclaimer of Warranties

10.1 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9 ABOVE, ALL BLUE TENT MARKETING IP IS PROVIDED UNDER THIS AGREEMENT “AS IS” AND BLUE TENT MARKETING HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE BLUE TENT MARKETING IP AND ALL SERVICES UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF SERVICE.

10.2 Blue Tent Marketing makes no representations or warranties regarding the reliability, availability, timeliness, quality, suitability, truth, accuracy or completeness of the Blue Tent Marketing IP or the services provided by Blue Tent Marketing or the results Customer may obtain by using the Blue Tent Marketing IP.

10.3 Without limiting the generality of the foregoing, Blue Tent Marketing does not represent or warrant that (a) the operation or use of the Service will be timely, secure, uninterrupted or error-free; (b) the quality of any products, services, or information obtained through the Service will meet Customer’s requirements; or (c) the Service or the Host Systems that make the service available are free of viruses or other harmful components. Customer acknowledges that neither Blue Tent Marketing controls the transfer of data over communications facilities, including the Internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Blue Tent Marketing is not responsible for any delays, delivery failures, or other damage resulting from such problems.

11. Limitation of Liability

In no event shall the aggregate liability of either party exceed the total amounts actually paid by and/or due from Customer in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party be liable to anyone for any indirect, punitive, special, exemplary, incidental, or consequential damages, or for any damages for loss of data, revenue, profits, use or other economic advantage, arising out of, or in any way connected with this Agreement, including but not limited to the use or inability to use the Service, regardless of cause, whether in an action in contract or negligence or other tortious action, even if the party from which damages are being sought has been previously advised of the possibility of such damages. The limitation of liability set forth in this Section 11 shall not apply in the event of Customer’s breach of Section 2 or Section 5, or in the event of either party’s breach of Section 12 or 13 below. Customer acknowledges and agrees that Blue Tent Marketing suppliers and licensors shall not have any liability under this Agreement.

12. Mutual Indemnification

12.1 Customer shall defend Blue Tent Marketing, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, demands, assertions, losses, liabilities and expenses (including attorneys’ fees and costs) and suits (“Claims”) brought against Blue Tent Marketing by a third party (i) alleging that the Customer Data or the Customer Trademarks, or any use there, infringes, misappropriates or violates any copyright, trade secret, U.S. patent, trademark or privacy right of, or has caused harm to, a third party, or (ii) arising out of Customer’s breach of this Agreement, and Customer will pay all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) finally awarded against Blue Tent Marketing by a court of competent jurisdiction with respect to, or agreed to in settlement of, all such Claims.

12.2 Subject to the foregoing, Blue Tent Marketing shall defend Customer against any and all Claims brought against Customer by a third party alleging that the Service infringes, misappropriates or violates any copyright, trade secret, U.S. patent or trademark of a third party, and Blue Tent Marketing will pay any all costs, damages, losses, liabilities and expenses including attorneys’ fees and costs) finally awarded against Customer by a court of competent jurisdiction arising out of or in connection with all such Claims. Blue Tent Marketing shall have no indemnification obligation or other liability for any claim of infringement arising from (a) use of the Service other than in accordance with this Agreement; (b) the combination of the Service with any other products, services, or materials; (c) Blue Tent Marketing compliance with Customer’s instructions, specifications or requirements; or (d) any third party products, services, or materials. If the Service is held to infringe or may be infringing, Blue Tent Marketing shall have the option, at its expense, to (i) replace or modify the Service to be non-infringing, (ii) obtain a license for Customer to continue using the Service or (iii) terminate the Service or this Agreement and refund any prepaid unused fees applicable to the terminated Service.This Section 11 states Blue Tent Marketing’s entire liability and Customer’s exclusive remedy for any claim of infringement.

12.3 The foregoing indemnities are conditioned on the indemnified party (i) promptly giving written notice of the claim to the indemnifying party; (ii) giving the indemnifying party sole control of the defense and related settlement negotiations; (iii) providing to the indemnifying party, at such party’s request and expense, all reasonable information and assistance necessary to perform its obligations under this Section 11.

13. Confidential Information

13.1 The Customer may have access to information that is confidential to the other party (“Confidential Information”). Confidential Information of Customer shall include Customer Data, and Confidential Information of Blue Tent Marketing shall include the Service and the ResCMS Materials. In addition, as to either party, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential, as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. A party’s Confidential Information shall not include information that:

i) Is or becomes a part of the public domain through no act or omission of the other party

ii) Was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party

iii) Is lawfully disclosed to the other party by a third party without restriction on disclosure or

iv) Is independently developed by the other party without use of or reference to the other party’s Confidential Information.

13.2 The parties agree to use all reasonable care to prevent disclosure of the other party’s Confidential Information to any third party and not use the other Party’s Confidential Information except as necessary to perform its obligations under this Agreement.

14. Internet Delays

BLUE TENT MARKETING’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BLUE TENT MARKETING IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

15. Account Information and Data

15.1 Blue Tent Marketing does not own any data, information or material that Customer submits to the Service in the course of using the Service (“Customer Data”). The Customer, not Blue Tent Marketing , shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Blue Tent Marketing shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Customer’s breach).

15.2 Blue Tent Marketing will make available to you a file of the Customer Data within 30 days of termination if Customer so requests at the time of termination. Blue Tent Marketing reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, Customer’s right to access or use Customer Data immediately ceases, and Blue Tent Marketing shall have no obligation to maintain or forward any Customer Data.

16. Technical Support and Service

During the term of this Agreement, Blue Tent Marketing will provide the Customer with technical support relating to the use of the Services via the Site. This support is available via email and telephone between the hours of 8:30am and 5pm MST, Monday-Friday. Customer acknowledges and agrees that Blue Tent Marketing is not responsible for providing any technical support with respect to the Services or the Site to Customer’s end users.

17. General Provisions

17.1 Governing Law; Counterparts. This Agreement will be governed and construed in accordance with the laws of the State of Colorado, irrespective of its conflict of laws provisions. This Agreement may be executed in counterparts. Delivery of an executed counterpart hereof by facsimile or other electronic means shall be equally effective as delivery of a manually executed counterpart.

17.2 Jurisdiction / Venue / Waiver of Jury / Notice Requirement / Mediation. Customer agrees that the exclusive venue for any action arising out of this Agreement shall be Garfield County, Colorado. Customer hereby consents to personal jurisdiction in the State of CO and waives any rights it may otherwise have to contest the assertion of jurisdiction over it in any other state. In any such action the parties waive trial by jury. Prior to filing any suit against Consultant, Customer must provide 30 days written notice to Consultant setting forth in detail the basis for Customer’s claim. If the Customer’s claim is not resolved within 30 days after Customer provides this notice, the parties agree that before Customer files suit, the parties will participate in non-binding mediation, with each party to pay 1/2 of the costs of the mediation. The mediation session may not exceed eight hours, except by agreement of the parties. Unless the parties agree otherwise in writing, any such mediation shall take place in Garfield County, Colorado. The mediator shall be a lawyer licensed to practice law in Colorado. If the parties cannot agree on a mediator, they agree that Mark Cohen shall appoint the mediator and they release both him and The Cohen Law Group, PC, from any liability in connection with said appointment

17.3 Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement, and all prior discussions are merged into this Agreement. It may not be changed or modified orally but only by a written agreement signed by both parties. The terms of this Agreement will govern all services undertaken by Consultant for Customer.

17.4 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the Court shall modify such provision for the benefit of the protected party to the maximum extent allowed by law, but in any event the remaining provisions will continue in full force without being impaired or invalidated in any way.

17.5 Successors and Assigns. This Agreement may be assigned by Customer with prior written notice of the assignment to the Consultant and shall be binding on the Consultant. Without the prior written consent of Customer, Consultant may not assign any of its rights or obligations hereunder.

17.6 Headings. Titles or heading to section of this Agreement are not part of the terms of this Agreement, but are inserted solely for convenience.

17.7 Interpretation. Should any provision of this Agreement require judicial interpretation, the Court shall not apply a presumption that the term shall be more strictly construed against one party or the other by reason of the rule of construction that a document is to be construed more strictly against the party who prepared the it.

17.8 Notices: All notices, requests and other communications under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and returned receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given, or sent by facsimile transmission, or sent by an email confirmed and accepted by the other party. If mailed, any such notice will be considered to have been given three (3) business days after it was mailed, as evidenced by the postmark. If delivered by hand, any such notice will be considered to have been given when received by the party to whom notice is given, as evidenced by a written and dated receipt of the receiving party. If sent by facsimile transmission such notice will be considered to have been given when received and a telephonic confirmation of such receipt is given by the receiving party. Notices may also be sent by email. Email notices must be confirmed and accepted by the other party via a return email in order to be considered effective notice hereunder. The address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.

17.9 Reading; Review of Counsel. The parties represent that they have carefully read every provision of this Agreement, and that they have had the opportunity to have qualified counsel review this Agreement

17.10 Legal Fees: If any proceeding arises between the parties with respect to a dispute involving the terms in this Agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceedings, in addition to any other relief it may be awarded.