Hosted Services Addendum

This HOSTED SERVICES ADDENDUM (the “Addendum”) is an addendum to, and is hereby incorporated into, the Fiddler Master Agreement between Fiddler and Customer, including the Master Terms and other Addenda incorporated therein (collectively, the “Agreement”). Certain capitalized terms used in this Addendum, not otherwise defined above, shall have the meanings set forth below. Capitalized terms used in this Addendum that are not otherwise defined in this Addendum have the meaning set forth in the Master Terms.

• ACCESS TO HOSTED SERVICES
  Subject to the terms and conditions of this Agreement and during the Access Term, Fiddler shall provide Customer with access to the Hosted Services solely in accordance with Fiddler’s standard user manuals and/or related documentation generally made available to customers of the Hosted Services (“Documentation”), and solely for Customer’s internal business purposes permitted by Customer’s usage limit as stated in the Order Form. Customer understands that this Addendum grants certain rights of access only, and that nothing in this Addendum may be interpreted to require delivery of a copy of the Hosted Software to Customer or installation of such a copy upon any computers or systems under Customer’s control. For sake of clarity, each particular Server Instance shall be authorized to access only such portions, components or applications within the Hosted Software with respect to which such Server Instance has usage rights, if any, under the relevant Hosted Services Addendum.

• OWNERSHIP; PROPRIETARY RIGHTS
  Subject to the rights granted in Section 1, Fiddler retains all right, title and interest in and to the Hosted Software, the Documentation and associated intellectual property rights, and Customer acknowledges that it neither owns or acquires any rights in any of the foregoing not expressly granted by this Addendum. Customer further acknowledges that Fiddler retains the right to use the Hosted Software for any purpose in Fiddler’s sole discretion, and Fiddler reserves all rights not expressly granted in this Addendum.

• FIDDLER OBLIGATIONS

  • 3.1  Procedures and Technical Protocols.  Fiddler will specify to Customer procedures according to which Customer may establish and obtain access to, and use of, the features and functions of the Hosted Service, including, without limitation, provision of any access codes, passwords, technical specifications, connectivity standards or protocols, or any other relevant procedures, to the limited extent any of the foregoing may be necessary to obtain access to the Hosted Services via the Internet (together with relevant portions of the Documentation, the “Access Protocols”).
  • 3.2  Responsibility for Hosting of Service.  As between the Parties, Fiddler will bear responsibility, at its own expense, for hosting and operation of hardware and software necessary to provide the Hosted Services through Fiddler’s URL provided to Customer, provided that Customer will be responsible for procuring and/or operating computer systems, software and telecommunications services meeting such minimum technical requirements as Fiddler may specify, as necessary for Customer to obtain access to the Hosted Services as hosted by Fiddler.
  • 3.3  Data Retention.  Customer acknowledges and understands that use of the Hosted Services will permit or require Customer to provide certain of Customer’s data to Fiddler for purposes of processing or storage using the features and functions of the Hosted Services (“Customer Data”).  During the term of this Addendum, Fiddler will make such Customer Data available to Customer through online access to the Hosted Service.  All such Customer Data shall be considered proprietary to Customer, and Fiddler will not use such Customer Data except as necessary to perform under this Agreement. Customer acknowledges and agrees that, except as otherwise agreed between the Parties in an exhibit to this Addendum or in a separate written agreement, Fiddler will have no obligation to archive or back-up Customer Data, nor will Fiddler have any liability for any loss or corruption of Customer Data, nor will Fiddler have any obligation under this Agreement to retain any Customer Data after the expiration or termination of the Access Term. 
  • 3.4  Professional Services; Training and Support.  Customer may request that Fiddler provide certain professional services related to Customer’s use of the Hosted Services, including, by way of example, configuration or customization of the Hosted Services, training of Customer personnel regarding use of the Hosted Services and/or provision of technical support related to the Hosted Services.  However, unless otherwise agreed between the Parties in the Order Form, Fiddler shall have no obligation to provide or perform and such services for or on behalf of Customer.

• GENERAL USAGE RESTRICTIONS

  • 4.1  Prohibited Uses.  Customer will not use the Hosted Services or Documentation for any purposes beyond the scope of the licenses granted in this Addendum.  Without limiting the generality of the foregoing, Customer will not (i) authorize or permit use of the Hosted Services or Documentation on more than the Customer’s usage limit as stated in the Order Form; (ii) market or distribute access to the Hosted Services or market or distribute the Documentation; (iii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under the access rights granted in Section 1; (iv) use the Hosted Services in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party; (v) modify or create any derivative works of the Hosted Services (or any component thereof) or Documentation, except with the prior written consent of Fiddler; (vi) combine or integrate the Hosted Services with hardware, software or technology not provided to Customer by Fiddler hereunder; or (vii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Hosted Services is compiled or interpreted, and Customer hereby acknowledges that nothing in this Addendum shall be construed to grant Customer any right to obtain or use such source code. 
  • 4.2  Third-Party Restrictions.  Customer shall undertake all measures necessary to ensure that its use of the Hosted Services and the Documentation complies in all respects with any contractual or other legally binding obligations of Fiddler to any third party, provided that Fiddler has notified Customer with respect to any such obligations. Customer shall not enter into any contractual relationship or other legally binding obligation with any third party which shall have the purpose or effect of encumbering the use or provision by Fiddler of the Hosted Services or the Documentation. 

  • 4.3  Compliance with Laws

    • Export Compliance. The Hosted Software and other technology made available to Customer (or any derivatives thereof), may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit users to access or use any Hosted Software in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
    • Anti-Corruption. Customer agrees that Customer have not received, been offered, solicited, or accepted any illegal (in accordance with applicable state and federal law) or improper bribe, kickback, payment, gift, or thing of value from any of Fiddler employees or agents in connection with the Agreement.
    • Anti-Terrorism. Neither Party is in violation of any U.S. anti-terrorism law (including applicable Executive Orders), or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any U.S. anti-terrorism law.
  • 4.4  Proprietary Notices.  Customer shall duplicate all proprietary notices and legends of Fiddler and its suppliers or licensors upon any and all copies of the Documentation made by Customer. Customer shall not remove, alter or obscure any such proprietary notice or legend.  Customer shall create and maintain complete and accurate records of all copies of the Documentation made by or on behalf of Customer, including the date such copies are made and where such copies are located. Customer shall promptly provide a copy of such records upon request by Fiddler.

• FEES AND PAYMENTS

  • 5.1  Payment Obligation.  In consideration for the licenses granted to Customer and the performance of Fiddler’s obligations under this Addendum, Customer shall pay to Fiddler, without offset or deduction, certain fees, in such amounts as may be determined by reference to the Order Form.  Unless otherwise provided in such Order Form, all such fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Fiddler with respect thereto.
  • 5.2  Suspension of Service.  In the event that Customer’s account is more than thirty (30) days overdue, Fiddler shall have the right in its sole discretion, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Customer’s use of the Hosted Service, without further notice to Customer, until Customer has paid the full balance owed, plus any interest due in accordance with the Master Terms, and has made any security deposit required by Fiddler in its sole discretion.
  • 5.3  Additional Entitlements. In the event that Customer exceeds entitlements defined in the Order Form, Fiddler will bill Customer for additional usage, prorated through the end of Term.

• SERVICE STANDARDS

  • 6.1  Limited Service Level Warranty.  Fiddler warrants that the Hosted Services will conform in all material respects to the service standards set forth in Exhibit A when accessed and used in strict accordance with the Documentation and the Access Protocols. Notwithstanding any other provision of this Agreement (including, without limitation, Section 7.2 of this Addendum), Customer acknowledges and agrees that its sole and exclusive remedy, and Fiddler’s sole and exclusive obligation, with respect to any breach of the foregoing warranty shall be remedies specified in such Exhibit A.
  • 6.2  Limitations of Warranty and Liability.  Except as expressly set forth in Section 6.1, Fiddler makes no representations or warranties under this Addendum, and Customer acknowledges that this Addendum is subject to all disclaimers and limitations or liability set forth in the Master Terms.

• TERM AND TERMINATION

  • 7.1  Access Term.  The term of this Addendum will begin on the date Customer accepts it and continue in effect as long as any Order Form remains in effect, unless and until terminated in accordance with this Section 7. Thereafter, this Addendum shall automatically renew for successive one (1)-year terms, unless either Party provides written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current term, as applicable, provided that Fiddler shall have the option to modify the rates and prices with respect to any renewal term by notifying Customer of such new rates and prices at least ninety (90) days prior to the commencement of such renewal term (the period during which this Addendum remains in effect, the “Access Term”). Customer may purchase additional entitlement to the Hosted Software, or additional services at any time, through an amendment of the Order Form or an execution of a new Order Form that supersedes the original Order Form. 

  • 7.2  Access Termination for Breach.  Either Party may, at its option, terminate this Addendum in the event of a material breach by the other Party.  Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Addendum shall terminate in the event that such cure is not made within such thirty (30)-day period.  Without limiting the foregoing, Fiddler may immediately terminate this Addendum upon written notice in the event that Customer breaches Section 4 or becomes insolvent or enters bankruptcy during the Access Term.

  • 7.3  Effect of License Termination.  Upon any termination of this Addendum, Customer shall (i) immediately discontinue all access to, and use of, the Hosted Services and Documentation; and (ii) promptly pay to Fiddler all amounts due and remaining payable under this Addendum.

  • 7.4  Survival.  The provisions of Sections 2, 3, 5, 6.2, 7.3 and 7.4 will survive the termination of this Addendum