e-business Hosting Agreement

Under this e-business Hosting Agreement ("Agreement") between International Business Machines Corporation ("IBM") and Blue fly, Inc. ("Customer"), IBM will provide Web hosting and related services ("Services") to Customer. The Agreement includes these terms and conditions and the documents referenced herein ("Base Terms"), e-business hosting services order forms accepted by IBM ("Order Forms"), and the following attachments:

a. Attachment A: Facilities Services;

b. Service Option Attachment for Facilities Services; and

c. all other applicable attachments referenced in the Order Forms for Services options selected by Customer ("Service Option Attachments").

In the event of a conflict between the Base Terms and an attachment, the Base Terms will govern, except where an attachment or a provision contained therein expressly states that it will govern over the Base Terms. The Base Terms and the attachments always govern over any inconsistent provision in an Order Form.

1.0 Definitions

a. "Acceptable Use Policy" means the Acceptable Use Policy for IBM e-business Services, located on the Internet at http://www. ibm. com/services/ e-business/aup. html, as of the Effective Date, and any subsequent modification in accordance with Section 13.2 below.

b. "Affiliates" means entities that control, are controlled by, or are under common control with a party to this Agreement.

c. "Base Components" means the hardware and software that IBM makes available, if any, as specified in Order Forms and associated Service Option Attachments.

d. "Content" means information, software, and data that Customer provides, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that Customer or its Subcontractors or Services Recipients create, install, upload or transfer in or through the e-business Hosting Environment and/or Customer Components.

e. "Content Administrator" means an employee or Subcontractor of Customer who is authorized by Customer to install, upload and/or maintain Content using a User Identification.

f. "Customer Components" means the hardware, software and other products, data and Content that Customer provides, including those specified in Service Option Attachments.

g. "e-business Hosting Environment" means the Base Components and the IBM provided Internet access bandwidth, collectively.

h. "Enterprise" means any legal entity and the subsidiaries it owns by more than 50 percent. The term "Enterprise" applies only to the portion of the Enterprise physically located within the United States of America.

i. "IBM e-business Hosting Center" means the facility used by IBM to provide the Services.

j. "Internet" means the public worldwide network of TCP/IP-based networks.

k. "Materials" means literary or other works of authorship (such as programs, program listings, programming tools, documentation, reports, drawings and similar works) that IBM may deliver to Customer. "Materials" does not include licensed program products available under their own license agreements or Base Components.

l. "Required Consents" means any consents or approvals required to give IBM and its Subcontractors the right or license to access, use and/or modify in electronic form and in other forms, including derivative works, the Customer Components, without infringing the ownership or intellectual property rights of the providers, licensors, or owners of such Customer Components.

m. "Service Option Ready Date" means the date that IBM has notified Customer that IBM has completed the implementation activities specified in an applicable Service Option Attachment.

n. "Services Recipients" means any entities or individuals receiving or using the Services, or the results or products of the Services.

o. "Service Option Attachment Start Date" means the day after the date of the last signature on an Order Form authorizing the Services under an applicable Service Option Attachment.

p. "Subcontractor" means a contractor, vendor, agent, or consultant selected and retained by IBM or Customer, respectively.

q. "TCP/IP" means Transmission Control Protocol/Internet Protocol.

r. "User Identification" or "ID" means a string of characters that uniquely identifies a Content Administrator.

2.0 IBM Services Responsibilities

IBM will perform the Services described in Attachment A and applicable Service Option Attachments.

3.0 Term and Termination

详细内容参考附件