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

• DEFINITIONS
  Certain capitalized terms, not otherwise defined in this Exhibit A, will have the meanings set forth in the Master Terms.  The following capitalized terms will have the definitions set forth below:

  • 1.1  “System Uptime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer has the ability to access the features and functions of the Hosted Services according to the Access Protocols.
  • 1.2  “Scheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which Customer is not able to access the Hosted Services, according to the Access Protocols, due to planned system maintenance performed by Fiddler.  Scheduled Downtime shall include the hours 12:00 AM to 5:00 AM PST on Saturday and Sunday for system maintenance, database maintenance, application/OS maintenance, and system upgrades.  Fiddler reserves the right to change the aggregated times at which it conducts such maintenance.
  • 1.3  “Emergency Downtime” will mean periods of time during which the Customer is not able to access the features and functions of the Hosted Services due to unanticipated maintenance required to maintain the Hosted Services.  Fiddler shall exercise commercially reasonable efforts to conduct such maintenance during the hours of 12:00 AM to 5:00 AM PST on Saturday and Sunday.
  • 1.4  “Unscheduled Downtime” will mean the total amount of time during any calendar month, measured in minutes, during which the Customer is not able to access the features and functions of the Hosted Services according to the Access Protocols, other than Scheduled Downtime and Emergency Downtime, as defined above.
  • 1.5  “System Availability” will mean, with respect to any particular calendar month, the ratio obtained by subtracting Unscheduled Downtime during such month from the total time during such month, and thereafter dividing the difference so obtained by the total time during such month.  Represented algebraically, System Availability for any particular calendar month is determined as follows:
  • $$System Availability=\frac{\text{(Total Monthly Time - Unscheduled Downtime)}}{\text{Total Monthly Time}}$$
    ‍
    NOTE: “Total Monthly Time” is deemed to include all minutes in the relevant calendar month, to the extent such minutes are included within the Term of this Agreement.

• SYSTEM PERFORMANCE

  • 2.1  System Availability: Fiddler will undertake commercially reasonable measures to ensure that System Availability equals or exceeds ninety-eight percent (98%) during each calendar month (the “Service Standard"), provided that any Unscheduled Downtime occurring as a result of (i) Customer’s breach of any provision of this Agreement; (ii) non-compliance by Customer with any provision of this Exhibit A; (iii) incompatibility of Customer’s equipment or software with the Hosted Services; (iv) poor or inadequate performance of Customer’s systems; or (v) force majeure (as contemplated in the Master Terms), shall not be considered toward any reduction in System Availability measurements.
  • 2.2  Access to Support; Response Times: Customer may report Unscheduled Downtime at any time (“24x7x365”) via e-mail as set forth below.  Fiddler will exercise commercially reasonable efforts to respond to reports of Unscheduled Downtime within SLA guidelines based on support tier as listed in section 7.
  • Support e-mail: support@fiddlerlabs.zendesk.com

• MEASUREMENT AND REPORTS

  • 3.1  System Monitoring and Measurement:  Fiddler will provide for monitoring of System Availability on an ongoing basis.  All measurements of System Availability will be calculated on a monthly basis for each calendar month during the Term.  Availability of access to the features and functions of the Hosted Services through the Customer Website will be determined as follows:  
  • Method of System monitoring and measurement: [CloudWatch]
  • 3.2  System Performance Reports:  Fiddler will provide reports to Customer on a monthly basis setting forth measurements of Unscheduled Downtime and a calculation of System Availability for the relevant preceding month.  If Customer disagrees with any measurement or other information set forth in any such report, it must so inform Fiddler in writing within five (5) calendar days after receipt thereof, provided that the accuracy of any such report shall be deemed conclusive unless such notice is provided by Customer.  Any such notice must indicate specific measurements in dispute and must include a detailed description of the nature of the dispute.  Fiddler and Customer agree to attempt to settle any such disputes regarding System Availability and/or related measurements in a timely manner by mutual good faith discussions.

• CUSTOMER REQUIREMENTS

  • 4.1  Minimum System: The service standards set forth in this Exhibit A assume that Customer is able to send to Fiddler, events in a format the Fiddler can consume in order to utilize Fiddler’s software capabilities
  • 4.2  Additional Customer Obligations: Except as otherwise agreement between the Parties in an Addendum to this Agreement or pursuant to a separate written agreement, Customer is responsible for (i) maintenance and management of its computer network(s), servers, software, Web site(s), and any equipment or services related to maintenance and management of the foregoing; and (ii) correctly configuring Customer’s systems in accordance with the Access Protocols.
  • 4.3  Reporting of Unscheduled Downtime: Customer must promptly notify Fiddler in the event Unscheduled Downtime occurs.
  • 4.4  Non-Performance by Customer: The obligations of Fiddler set forth in this Exhibit A will be excused to the extent any failures to meet such obligations result in whole or in part from Customer’s failure(s) to meet the foregoing requirements. 

• REMEDIES

  • 5.1  Credits Against Fees:  In the event Unscheduled Downtime occurs, Customer will be entitled to credits against its subsequent payment obligations under this Addendum according to the following table:

  • Monthly System Availability [or rolling 3 month average]

    Credit Against Fees

    97.99% to 95.00%

    Below 94.99%

    2% of Monthly Fee

    5% of Monthly Fee

    
    Except as set forth in the following Section 5.2, the Customer’s rights under this Section 5.1 are Customer’s sole and exclusive remedy with respect to any Unscheduled Downtime or any failure by Fiddler to meet the Service Standard required by Section 2.1.  Except as expressly set forth in this Section 5.1, no right is granted to Customer by this Exhibit A to withhold or offset any amounts otherwise due to Fiddler under this Agreement.

  • 5.2  Termination for Performance Deficiencies:  Fiddler acknowledges that System Availability is important to Customer’s business processes.  Accordingly, Customer may terminate this Addendum in the event that (i) Fiddler fails to meet the Service Standard three (3) or more times during any twelve (12)-month period; (ii) System Availability for any single calendar month falls below 90%; or (iii) Fiddler does not respond within sixty (60) minutes to Customer reports of Unscheduled Downtime by means of telephonic or email acknowledgements with respect to 98% or more of such reports during any twelve (12)-month period.  Notwithstanding the foregoing, no material breach of this Agreement will be deemed to occur if Fiddler fails to meet the Service Standard less than three (3) times in any twelve (12)-month period, and Customer shall have no right to terminate this Addendum as a result thereof (unless any such failure causes System Availability to fall below 90% during the relevant calendar month).

• DATA BACK-UP AND RECOVERY

  • 6.1  Back-Up of Customer Data and Retention: If requested by Customer, Fiddler will perform back-up and archiving of Customer Data according to the schedule set forth in the table below:

  • Type of Back-Up

    Description

    When does back-up occur?

    Retention Period

    Daily Incremental Files

    Full Back-Up

    Daily insertions/modifications to customer data made in the previous 24 hours

    Daily

    One week

    Weekly

    One month

    All Customer Data

  • 
    6.2  Recovery of Archived Data: If Fiddler performs back-up services under Section 6.1 of this Exhibit, above, as may be requested by Customer, Fiddler will exercise commercially reasonable efforts to restore data files from archived copies as quickly as reasonably practicable, as necessary as a result of system failure or data corruption or losses. Customer acknowledges that the amount of time required to restore archived data files is dependent upon numerous factors, including, but not limited, severity or the relevant data corruption or loss. In the event that recovery becomes necessary due to the fault of Customer, Customer shall bear the cost of recovery. If recovery becomes necessary due to the fault of Fiddler, Fiddler shall bear the cost of recovery.

• SUPPORT ACCESS

  • Support channels the customer may access are dependent on contracted support tier. SLAs for all channels are aligned with response time SLAs.
    ‍
    

    Communications Channels

    Lite

    Business Standard

    Premium

    Documentation & Knowledge Base, 24x7 Access

    Web Ticket

    ✓

    ✓

    ✓

    ✓

    ✓

    ✓

    Customer Success Manager

    —

    ✓

    ✓

    Escalation Hotline

    —

    —

    ✓

    Slack Access

    —

    —

    ✓

    
    Support Access, Additional Information
    

    E-mail: 

    • Fiddler shall maintain a technical support e-mail, which will be staffed by knowledgeable employees capable of providing technical assistance regarding the Software, its functionality, operations, and supporting documentation

  • Application-Based (Service Documentation):

    • 24 hour / 7 day application integrated support documentation.  You will be provided with customer logins to access support documentation.

  • Problem Classification
    

    Support tickets are placed into three general categories as follows:

    • Support Issue - a question about standard Fiddler functionality that does not involve changes to the core Fiddler Software
    • Enhancement Request - Request to add functionality to the core Software
    • Bug - a defect in the core Software product

    Support Issues can generally be resolved by your administrator within a few hours of submission based on advice provided by support staff.

    Enhancement requests may be scheduled at Fiddler discretion, based on the impact to Fiddler and the overall Fiddler Customer base. However, enhancement requests may also be performed as paid custom development at Customer’s request, should Fiddler agree to the request, while also not incorporating them as a general enhancement.
    

    For Bugs, Fiddler shall respond to and use reasonable commercial efforts to resolve issues deemed to be Bugs in accordance with the priority levels indicated below, which priority levels shall be determined in good faith. Because it is usually possible to accomplish the same task in more than one way, Fiddler is often able to provide reasonable workarounds to any functional bugs

  • Priority Response Times

    The following Target Response times are for handling issues that have been classified as Bugs.
    

    Fiddler will use best commercially reasonable efforts to meet the response times and resolution targets set forth in this Section  

  • Priority

    Description

    Target Response Time

    1 - Critical (System Down)

    2 - High

    Fiddler platform is down or major malfunction is resulting in majority of users not able to use Fiddler’s capabilities

    Premium Support
    1 hour  24x7
    
    Business Standard Support
    3 hours 24x7
    
    Lite Support
    8 business hours
    M-F: 9am to 5pm EST 
    
    Fiddler will assign as many engineers and/or support staff as needed until the problem is resolved.

    Premium Support
    ‍4 business hours
    M-F: 9am to 5pm EST
    
    ‍Business Standard Support
    ‍8 business hours
    M-F: 9am to 5pm EST
    
    ‍Lite Support
    ‍8 business hours
    M-F: 9am to 5pm EST

    Moderate to significant loss of FIddler’s functionality or performance. Product’s usage is limited causing a minority of the users not being able to use Fiddler’s platform.

    2 – Normal

    Non-critical platform and user impact to production or non-production environment.

    Premium Support
    ‍8 business hours
    M-F: 9am to 5pm EST
    
    ‍Business Standard Support
    ‍8 business hours
    M-F: 9am to 5pm EST
    
    ‍Lite Support
    ‍8 business hours
    M-F: 9am to 5pm EST
    
    If a workaround is not provided, Fiddler will make best effort to correct the bug in the next regular upgrade.