e-business Hosting Agreement

Exhibit 10.11

e-business Hosting Agreement

This e-business Hosting Agreement (“Agreement”) between International Business Machines Corporation (“IBM”) and Successfactors (“Customer”), sets forth the terms and conditions under which IBM will provide web hosting and related services (“Services”) to Customer. The Agreement includes the terms and conditions and the documents referenced herein (“Base Terms”), e-business hosting services order forms accepted by IBM (“Order Forms”), and applicable attachments referenced in Exhibit A of such Order Forms (“Attachments”) including Attachments for Services options selected by Customer (“Service Option Attachments”). In the event of a conflict between the Base Terms and an Attachment or an Order Form, the Base Terms will prevail, except where an Attachment, Order Form, or a provision contained therein expressly states that it will prevail over the Base Terms.

1.0  Definitions

a.

“Acceptable Use Policy” means the Acceptable Use Policy for IBM e-business Services, located on the Internet at www.ibm.com/services/e-business/aup.html, as of the Effective Date, and any subsequent modification in accordance with Section 12.2 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.		“IBM e-business Hosting Center” means a facility used by IBM to provide Services.
i.		“Internet” means the public worldwide network of TCP/IP-based networks.

j.

“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 as part of Services. “Materials” does not include licensed program products available under their own license agreements or Base Components.

k.

“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.

l.

“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.

m.

“Services Recipients” means any entities or individuals receiving or using the Services, or the results or products of the Services.

n.

“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.

o.		“Subcontractor” means a contractor, vendor, agent, or consultant selected and retained by IBM or Customer, respectively.
p.		“TCP/IP” means Transmission Control Protocol/Internet Protocol.

q.

“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 applicable Attachments.

3.0  Term and Termination

3.1  Term

This Agreement will be effective beginning on 12:01 a.m., Eastern Time, on the day after the date of last signature to these Base Terms (“Effective Date”) and ending on the expiration and/or termination of all Service Option Attachments, unless the Agreement is terminated earlier in accordance with the terms herein. The term of each Service Option Attachment is as specified on the applicable Order Form.

3.2   Renewal

Upon the expiration of the then-current term, each Service Option Attachment will renew automatically for an additional one year term unless either party notifies the other party that it has elected to terminate such Service Option Attachment. Such notification must be in writing at least thirty (30) days prior to the end of the then-current term for the applicable Service Option Attachment.

3.3   Termination for Cause

Customer or IBM may terminate this Agreement for material breach of this Agreement by the

other upon written notice containing the specific nature and dates of the material breach. The breaching party will have thirty (30) days from receipt of notice to cure such breach, except for nonpayment by Customer, which must be cured within five (5) business days from receipt of notice. If such breach has not been timely cured, then the non-breaching party may immediately terminate this Agreement upon written notice.

3.4   Termination for Convenience

Customer may terminate this Agreement (including all Service Option Attachments) or any Service Option Attachment (with the exception of any Service Option Attachment that is a prerequisite for the provision of Services under a non-terminated Service Option Attachment) for convenience by:

a.		providing at least one month’s prior written notice to IBM; and
b.		paying as an early termination charge for each Service Option Attachment to be terminated, the amount specified in such Service Option Attachment or, if no amount is specified, an amount equal to one months’ charges of the applicable monthly recurring charge of such Service Option Attachment. Such termination charges only apply upon early termination of an initial term of any Service Option Attachment and do not apply to any renewal term.

3.5   Effect of Termination

Upon the date of termination, all Customer payment obligations accrued hereunder through the date of termination will become due and payable. The termination of selected Service Option Attachments will not affect Customer’s obligation to pay charges under other Service Option Attachments.

4.0   Charges and Payment

4.1  Charges

Charges for applicable Services will be specified in Service Option Attachments and Order Forms. Charges can be specified as one-time, installment, recurring, or usage. IBM will invoice such Charges when they begin or are due as set forth in Service Option Attachments.

4.2   Payment

IBM invoices will specify the amount due. Notwithstanding the terms on an invoice, payment is due and payable thirty (30) days after Customer’s receipt of an invoice from IBM. Customer agrees to pay accordingly, including any late payment fees. Payment will be made in United States dollars.

4.3   Taxes

Customer will pay or provide appropriate exemption documentation for all taxes, duties, levies, and any other fees (except for taxes based upon IBM’s net income) related to the Services imposed by any governmental authorities. Charges specified herein (including in an Order Form) are exclusive of any such taxes, duties, levies or fees.

4.4   Late Payment Fees

If any payment is not received by IBM by the payment due date, the late payment fee will be the lesser of: 1) one and one-half percent (1.5%) of such overdue payment per every thirty (30) day period or portion thereof; or 2) the maximum amount permissible by applicable law.

5.0   Warranties and Disclaimers

5.1  IBM Representations and Warranties

IBM represents and warrants that:

a.

it will perform the Services using reasonable care and skill and in accordance with the applicable Service Option Attachments; and

b.

it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.

5.2   Exclusivity of Warranties

THE WARRANTIES IN SECTION 5.1 ARE THE EXCLUSIVE WARRANTIES FROM IBM. THEY REPLACE ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

5.3   Security

a.

Customer acknowledges that IBM offers numerous security options, specified in Service Option Attachments. It is the Customer’s responsibility to select, on an Order Form, the set of security options that it determines meet Customer’s needs. IBM will implement such selected security options as specified in the applicable Service Option Attachment.

b.

Customer acknowledges that IBM does not control the transfer of data over telecommunications facilities, including the Internet. IBM does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the e-business Hosting Environment or Customer Components.

c.

Customer agrees that IBM shall have no liability for any provision of security-related services or advice that IBM may voluntarily provide outside the scope of selected Service Option Attachments.

5.4   Other Disclaimers

a.

IBM does not warrant uninterrupted or error-free operation of any Service or that IBM will correct all defects.

b.

IBM does not make any representation or warranty with respect to Customer’s responsibilities set forth in Section 10.5.

c.

IBM provides Materials, non-IBM products, and non-IBM services WITHOUT WARRANTIES OF ANY KIND. However, non-IBM manufacturers, suppliers, or publishers may provide their own warranties to you, and IBM agrees to pass on such warranties to the extent that it is permitted to do so. IBM shall not be responsible for enforcement of any of these third party warranties.

6.0   Confidentiality

All information exchanged between the parties is non-confidential. If either or both parties require the exchange of confidential information, such information will be exchanged under the terms and conditions of a separate written confidentiality agreement. With respect to any confidential information contained in or traveling through the e-business Hosting Environment or Customer Components, as is contemplated herein, the provisions of Sections 5, 8, and 9 herein will prevail to the extent of any inconsistent provisions in the confidentiality agreement.

7.0   Indemnification

7.1  Indemnification by IBM

If a third party claims that Materials or Base Components IBM provides to Customer infringe that party’s patent or copyright, IBM will defend the Customer and its employees, officers, and directors against that claim at IBM’s expense and pay all costs, damages, and reasonable attorneys’ fees that a court finally awards (or which IBM agrees in any final settlement), provided that Customer:

a.

promptly notifies IBM in writing of the claim; and

b.

allows IBM to control, and cooperates with IBM in, the defense and any related settlement negotiations at IBM’s expense as described above. If such a claim is made or appears likely to be made, Customer agrees to permit IBM to enable Customer to continue to use the Materials or Base Components, or to modify them, or replace them with non-infringing Materials or Base Components that are at least functionally equivalent. If IBM determines that none of these alternatives is reasonably available, Customer agrees to return the Materials or Base Components (if in Customer’s possession) to IBM on IBM’s written request. IBM will give Customer a credit equal to the amount Customer paid IBM for the applicable Materials or for use of the applicable Base Components up to a maximum of twelve months of applicable charges. This is IBM’s entire obligation to Customer with regard to any claim of infringement. Notwithstanding the foregoing, IBM is not responsible for third party claims based on:

	1.		anything Customer provides which is incorporated into the Materials;
	2.		Customer’s modification of the Materials;
	3.		the combination, operation, or use of the Materials with any product, data, or apparatus that IBM did not provide; or
	4.		non-IBM hardware, software, or data, including those that may be in the Base Components.

7.2   Indemnification by Customer

a.

Customer will defend IBM and its Affiliates and their employees, officers, and directors, at Customer’s expense, and pay all costs, damages, and reasonable attorneys’ fees that a court finally awards (or which Customer agrees in any final settlement) for any third party claim:

	1.		that Content or Customer’s use of the Services violates Customer’s obligation in Sections 10.2(b) and 10.4 (b);