e-Business Hosting Agreement (38K)
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e-business Hosting Agreement
Under this e-business Hosting Agreement ("Agreement") between International
Business Machines Corporation ("IBM") and Bluefly, 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.
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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
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