Support Services Terms and Conditions - Proactive Insights and Support For Open-Source Applications

These Terms of Service (hereinafter: Terms) Effective from the 1st February, 2022 (hereinafter: Effective Date) between Hossted, Inc., a Delaware Corporation, (hereinafter: Hossted,) and yourself, a legal entity whose details were inserted in the specific order form.

Hossted offers managed service solutions for cloud platforms which includes a support portal, update and upgrade mechanism, and other monitoring solutions via third party marketplace, and you wish to purchase support services from Hossted, all according to the specific plan marked in your order form.

These terms are the only agreement between yourself and Hossted and shall supersede any other agreement relating to the subject matter. You are entering into these Terms as the legal representative of the entity on behalf of which you are acting, and acknowledge that you need to obtain the required consents prior to entering into these terms.

Your Representations and Responsibilities

Hossted’s services are meant for adults, meaning that you have to be over eighteen (18) years of age to use them, or act on behalf of a corporation of which you are the designated signatory.

Services. Hossted shall provide you with the support services as detailed on the specific page on the applicable marketplace or web store, as well as our website. Hossted may update its plans from time to time to reflect changes in technology and services provided, or updates to its support services. The pricing provided is per managed service, and not per customer. Meaning that if you wish to purchase support for two different services or platforms, the pricing shall be per platform.

Availability. Hossted’s services shall enable you to access the ticketing system in order to open issues 24/7, but Hossted’s live chat and email support shall be available only during business hours. Any ticket, email or chat received outside business hours shall be responded to within one (1) business day.

Dashboard. If you make use of our Dashboard, you are hereby granted a limited, non-exclusive, temporary, right to access the Hossted dashboard which provides real-time data on the availability and status of your managed services.

Support and Maintenance. If included in the purchased plan, Hossted shall provide you with updates and upgrades to installed software on your managed services, configuration and installation of third party software and services, issue diagnostics relating to installed software and fixing or patching known bugs and vulnerabilities.

Contact Point. You shall appoint one exclusive contact person who shall be in charge of their contact with Hossted in order to ensure the continuing support of the managed services.

Uptime and Availability. Hossted shall not be responsible for the uptime and availability of services it did not provision or manage for you. Meaning, that unless you bought a managed application service through Hossted, it cannot guarantee the uptime of your service.

Critical Flaw. A Critical Flaw shall be defined as a flaw adhering to one or more of the following conditions: (i) it results in a total failure of the software systems; (ii) it creates a situation that does not allow enabling at least one substantial feature of services; or (iii) it may cause substantial financial damage. Response to a Critical Flaw shall commence within 8 hours of reporting about it, and Hossted shall exert its best efforts to ensure that the Platform shall be restored to its operational state and fixed.

High Flaw: A High Flaw shall be defined as a flaw adhering to one of more of the following conditions: (i) it impairs systems that the software interacts with severely or their material functionality; (ii) it creates a substantial flaw in the ability to provide your services; (iii) it causes a system restart that impairs the services or the operation of certain features of the system, more than once a day; or (iv) it is likely to cause delays in the project’s deployment. Response to a High Flaw shall commence within 12 hours of reporting it, and Hossted shall exert its best efforts to ensure that the Platform shall return to its operational state and fixed.

Medium Flaw: A Medium Flaw shall be deemed as any other flaw. Response to a Medium Flaw shall commence within 4 business days of reporting it, and Hossted shall exert its best efforts that the Platform shall be fixed.

The Maintenance Services specifically exclude the following services, which shall be separately billed if requested: (i) instruction of any kind relating to the use of the software; (ii) general consulting and assistance in the operation of the software or its functionality, which do not relate to a flaw; (iii) phone support; (iv) fixing bugs that were created due to misuse of the software; (v) Fixing flaws resulting from attaching third party components to the software or the environment it was installed on; (vi) fixing flaws resulting from external elements such as power outages, hardware malfunction, weather conditions, Force majeure; (vii) backing up your data.

Payments: In consideration of its services, you shall pay Hossted the payments specified in the specific page on the applicable marketplace or web store, as well as our website. The payment for all items shall be paid up front and monthly, where the payment for the month of July, for example, shall be paid by no later than July 5th. Hossted may charge a late fee for collecting any late payments, and may charge a monthly interest of 1%, or the maximum applicable by law, whichever is lower for any late payment. Hossted may suspend the services if you default on a payment.

Term, Termination. The Term of this Annex shall be from the Effective Date and for an indefinite period. Hossted may terminate this agreement by providing a 90-day written notice and you may terminate these Terms by providing a 30-day prior written notice. Upon termination, and unless such termination was caused due to your failure to pay, Hossted shall avail you of a copy of any data stored required to provide ongoing services.

Warranty. Hossted cannot warrant that the services may be available at all times, that they may be uninterrupted, that they will not contain any flaws and/or that they shall at all times be available to you. Hossted specifically disclaims any warranty, expressed, implied and/or granted otherwise for the services. Hossted’s sole warranty is to provide the professional services and to procure services from the Service Providers.

LIMITATION OF LIABILITY. LIMITATION OF LIABILITY. HOSSTED’S AGGREGATE LIABILITY TO ANY DAMAGE CAUSED TO THE COMPANY AS A RESULT OF THE SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE MONTHLY FEE PAID TO HOSSTED DURING THE MONTH WHERE SUCH DAMAGE OCCURRED. HOSSTED SHALL NOT BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, OR OTHER DAMAGES, OR TO ANY DAMAGE CAUSED DUE TO THE ACTION, NEGLIGENCE OR FAULT OF ANY THIRD PARTY.

Indemnification. You shall indemnify and hold Hossted harmless from all and any claims brought by any third party resulting from a claim based on your misrepresentation under this agreement, breach of law or other regulatory order, or any infringement or breach of a third party right. Such indemnification shall apply solely when: (i) You shall be promptly notified on such claim; (ii) Hossted shall provide you the opportunity to defend, or participate in the defense, of such claim; (iii) Hossted shall not settle any claim without your written consent.

Personal Data. Hossted’s purpose of these Terms is to provide services which relate to software and servers, and not persons. However, if Hossted shall be required to process Personal Data, then prior to such processing, you shall be responsible to provide Hossted with its data processing agreement and to ensure that all relevant safeguards under the laws of where you incorporated or reside is regulated are met.

Not a Consumer. You represent and warrant that you are not a consumer and are entering these Terms as a business, and shall not be entitled to any protection provided under law to consumers.

Confidentiality. You are willing to disclose Confidential Information to Hossted on the condition that it is used solely in relation of these Terms; Hossted agrees to maintain the secrecy of that information and only to use the same for the purposes of this agreement and otherwise subject to the terms and conditions set out in these Terms.

For the purpose of these Terms, “Confidential Information” shall mean all information divulged by either yourself, in relation to your business, commercial, economic, financial, operational, technical, administrative, marketing, planning and staff information and data relating to it or to its interests whether in written, oral, pictorial or any other form and all information, data, know-how, formulae, processes, designs, photographs, drawings, specifications, software programs, samples and any other material attributable to or deriving its or their existence from the discussions between the parties;

Non Disclosure. Hossted shall not make or use or permit to be used, otherwise than for the purposes of these Terms or for the purpose of any disclosure permitted by these Terms, any copies of or notes or memoranda relating to the Confidential Information. All such copies that Hossted makes shall be your property, and be treated as part of your Confidential Information.

Care. Hossted shall keep Confidential Information in confidence, and not disclose it or allow it to be disclosed save as permitted by these Terms and shall at all times keep it secure and protected against unauthorized access, which shall mean exercising reasonable skill and care (and at the very least providing no lesser security measures and degree of care than that which Hossted applies to its own Confidential Information).

Permission for Disclosure. Hossted shall not disclose any of your Confidential Information to any third party without your express prior written consent, save that Hossted shall be permitted to disclose your Confidential Information as is necessary for this agreement to such of the directors, employees, consultants and authorized representatives who need to receive or be aware of the Confidential Information solely for the purposes of this agreement and to such of the Hossted’s lawyers, accountants, bankers and other professional advisers who need to know it for the purpose of advising in relation to this agreement, but shall ensure that all such persons are made aware of and comply with the terms of these Terms as if the persons mentioned were a party to these Terms.

Enforcement of Obligations. Hossted shall, at your request and at its own expense, take such reasonable steps as may be required to enforce the obligations of the persons under this agreement including (where necessary) the institution of legal proceedings.

Remedies. Hossted acknowledges that Confidential Information is proprietary and of great value to that party and agree that a breach by a party of any of the terms of these Terms at any time may result in damage to the other for which there may or will be no adequate remedy in law, and recognizes that money damages would not be a sufficient remedy for breach and that in the event of such breach, the non-defaulting party shall be entitled to apply for injunctive relief, specific performance and other equitable relief for a threatened or actual breach of these Terms. Any claim for losses under these Terms shall be restricted to direct loss only and shall not extend to indirect or consequential loss.

Open Source Software. If the services include the distribution or installation of third party software licensed under an open-source license, then in case of any conflict between the terms of these Terms and the license, the license shall prevail. If Hossted shall be requested to install any third party software on your servers, it shall be your responsibility to adhere to such licenses and to examine them prior to allowing Hossted such installation.

Marketplace Contract. This Terms does not replace the agreement entered between the parties in respect to the installation of software under the applicable marketplace, and shall only govern the support services provided under these Terms. In any case of a conflict between the terms of the marketplace agreement and these Terms, these Terms shall prevail in respect to the services provided under it.

Entire Terms, Amendment, Waiver. This Terms represents the entire and complete understandings between the parties in respect to the support services. This Terms shall only be amended or modified in writing, signed by both parties. No waiver or failure to exercise any rights by any party to this agreement shall be constructed as an amendment or waiver and shall not create any precedent.

Independent Contractors. Parties enter into these Terms as independent contractors. Nothing in these Terms shall create employee-employer relations between the parties, a partnership or any other legal structure.

Assignment. Hossted may assign its rights and obligations to any entity under its control or common control, provided that your rights under these Terms shall not be impaired.

Prohibited Entities. You may not be a resident of a hostile country, such as Iran, North Korea, Libya, Syria or any other country which is in a state of war with either the United States or where Hossted does business. Nor may you be a member of a terror organization.

Governing Law. This agreement shall be governed by the laws of the State of Israel.

Jurisdiction. Any dispute arising from this agreement or any other dispute between the parties shall be brought solely to the competent courts of the Tel-Aviv district in Israel.