HOSTING SERVICES AGREEMENT

HOSTING SERVICES AGREEMENT

This Hosting Services Agreement is made by and between Spondoolies and You, as such terms are defined in the Term and Conditions of Sale (the "Agreement").

Recital:

  1. Spondoolies provides location facilities in terms of licensing rack/unit space for Your own purchased Product(s) together with the provision of associated power, security and maintenance services and access to third party service providers at Spondoolies' selected location (the “Location”);
  2. You wish to license the rack space at the Location and to contract for the Services all in accordance with the following terms and conditions;
  3. This Hosting Services Agreement forms an integral part of the Agreement, and unless specifically indicated otherwise herein, the terms and provisions of the Agreement shall apply to his Hosting Services Agreement, mutatis mutandis.
  1. Definitions and Interpretation:
    1. In this Hosting Services Agreement the following words and phrases shall have the meanings respectively set against them:-
      1. “Acceptable Use Policy” the policy laid down in Section 9 below, as may be amended or updated by Spondoolies from time to time;
      2. “Charges” all charges detailed in the Order Confirmation payable by You to Spondoolies under the terms of this Hosting Services Agreement;
      3.  “Commencement Date” the date upon which Spondoolies commences to supply the Services to You set out in the Order Confirmation;
      4. “Equipment” Your Product(s) purchased from Spondoolies and installed in the Licensed Space in accordance with Section 3.1. of this Hosting Services Agreement;
      5. “License” the License granted by Spondoolies to You in Section 2;
      6. “Licensed Space” the rack space that Spondoolies will designate from time to time in accordance with Section 2.2.4;
      7.  “Outage Event” any event causing Equipment to be off line;
      8. “Planned Maintenance” the maintenance referred to in Section 4.2.4(b);
      9. “Power Availability Target” the targets set out in Section 4.2;
      10. “Procedures” policies, guidelines or procedures published by Spondoolies from time to time;
      11.   “Services” all services to be provided by Spondoolies to You under this Hosting Services Agreement;
      12.  “Standard Service Hours” has the meaning given to it in Section 5;
      13. “Targets” either one or both of the Power Availability Targets or the Temperature Targets;
      14. “Temperature Targets” the targets set out in Section 4.2
      15. “Term” the initial term as defined in the Order Confirmation and thereafter subject to not less than 1 month's notice in writing given by one party to the other pursuant to Section ‎11.1;
    2. Any capitalized term used herein shall have the meaning ascribed to it in the Agreement, unless specifically defined otherwise herein.
    3. Words importing the singular include the plural and vice versa, words importing a gender include every gender and references to persons include bodies corporate and unincorporated associations and partnerships.
    4. Any reference to a Recital, Section or Schedule shall (except where specified otherwise) be deemed to be a reference to a Recital, Section or Schedule (as the case may be) of this Hosting Services Agreement. The Schedules form part of this Hosting Services Agreement and shall have the same full force and effect as if expressly set out in the body of this Hosting Services Agreement.
    5. In this Hosting Services Agreement and in the Schedules, Section or paragraph headings are for ease of reference only and do not form part of this Hosting Services Agreement nor affect the construction of any provisions.
    6. In construing this Hosting Services Agreement general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things and general words shall not be given a restrictive meaning by reason of the fact they are followed by particular examples intended to be embraced by the general words.
    7. You shall be deemed to have notice pursuant to this Hosting Services Agreement of all policies and procedures and notices delivered to You by Spondoolies or posted by Spondoolies on its Web Site.
  2. Grant of License
    1. With effect from the Commencement Date, Spondoolies hereby grants to You a non-exclusive non-transferable license:-
      1. to have the Product(s) purchased by You from Spondoolies authorized under the provisions of Section 3.1 (the “Equipment”) within the Licensed Space as a licensee only. The installation and connection shall be carried out by Spondoolies and/or its authorized representatives;
      2. under no circumstances will You be authorized to enter the Location and the Licensed Space.
    2. You acknowledge and agree that:
      1. this License will not confer on You any tenancy rights or create any relationship of landlord and tenant between You and Spondoolies, nor any rights whatsoever against any third parties;
      2. this License is personal to You and may not be transferred to any assign, sub-tenant or sub-licensee nor the Licensed Space shared with any third party;
      3. that the Location will contain equipment of other customers of Spondoolies as well as that the use of the Location will be shared with other customers; and
      4. Spondoolies may move the Equipment to any other space within the Location excising all reasonable care and minimized down time. Spondoolies shall be responsible for all costs incurred in connection with the move initiated by it.
  3. Equipment
    1. You will (unless otherwise specified) own all right, title and interest to the Equipment and will be responsible for supplying and arranging delivery of the Equipment from the Licensed Space within the Location at Your own expense and at a date and time agreed with Spondoolies, or as otherwise determined or applicable in accordance with the provisions of this Agreement.
    2. Spondoolies will be responsible for providing power and security to the Location, according to Spondoolies’s standard specification as specified in Section 4 below.
    3. Spondoolies will at all times throughout the Term of this Hosting Services Agreement:-
      1. maintain the Equipment to an industry acceptable safety standard, and to a standard which ensures that the Equipment does not adversely affect or interfere with the proper operation of Spondoolies’s own equipment and services nor the equipment and services of third parties or that of other Spondoolies customers within the Location;
      2. ensure that the Equipment is clearly identified as belonging to You and maintain adequate insurance for the same.
    4. In the event that Spondoolies has reason to believe that Your Equipment may be the cause of, or contributing factor to, or affected by any power or service problem, You agree that Spondoolies may temporarily disconnect the power supply to the Equipment or any part thereof for the purposes of investigating and rectifying any such problems or for carrying out essential maintenance relating to the Licensed Space, the Location or other equipment in the Location. Wherever reasonably practicable (emergencies excluded), Spondoolies will give advance notice of such disconnection and use all reasonable endeavors to cause minimum disruption to the operation of the Equipment by endeavoring to make any such essential disconnection outside the Standard Services Hours.
    5. You grant Spondoolies a lien over the Equipment to secure all sums due in connection with the Hosting Services detailed herein, owing or incurred to Spondoolies under this Hosting Services Agreement, and such lien shall continue and Spondoolies will be entitled to retain possession of all equipment (and You shall not be entitled to ask for the removal of the Equipment from the Location) until Spondoolies has received all such sums in cleared funds. In the event that payment has not been received within 14 days of invoice, You hereby appoint Spondoolies as Your agent to sell or otherwise dispose of the Equipment (including any data on it) and to defray any unpaid Charges against the sale proceeds before accounting to You for the balance.
  4. The Services
    1. Spondoolies shall use all reasonable endeavors to:
      1. provide 220 Volt AC power supply to the Equipment;
      2. maintain the air temperature into the front (i.e. cold aisle) of Your racks between 20 and 27 degrees centigrade
      3. adequate internet connection;
      4. remote access to the Equipment;
      5. provide a fire detection and/or suppression system;
    2. Spondoolies shall have no liability to You if the failure to meet the above specified Power Availability or Temperature Targets arises directly or indirectly from any of the following:-

      (a)     Spondoolies acting on recommendations from third parties such as emergency services;

      (b)     scheduled maintenance or re-configuration to service being carried out by Spondoolies or You;

      (c)     outages resulting from a failure of Your Equipment;

      (d)     outages resulting directly or indirectly from a breach of any of the terms of this Hosting Services Agreement by You, including but not limited to failure to comply with procedures or caused by unauthorized changes to the Equipment by You;

      (e)     Planned Maintenance notified at least 3 days in advance.

    3. Spondoolies will provide security cover on the hosting Location and the area in which the Equipment is located will be kept secure in the manner Spondoolies deems fit.
    4. Spondoolies shall be entitled to on, no less than 7 days notice given to You, suspend the provision of Services in the event that You are in arrears in payment of Charges by 7 days or more. Spondoolies shall have no liability whatsoever to You arising directly or indirectly from the suspension of Services, and a re-connection charge may be payable.
    5. Spondoolies reserves the right to adapt or modify the Licensed Space and/or the Location as may be required from time to time including, but not limited to alternations necessary to comply with changes in Government legislation or statutory instruments or orders which directly affect the Licensed Space or the Location. Any such modification shall be carried out with a minimum of disruption to the Service but Spondoolies shall not be liable to You for any disruption which may occur. Spondoolies shall, where reasonably practicable, give You at least 48 hours notice.
    6. Spondoolies will monitor the agreed level of service at the Licensed Space remotely as may be required.
  5. Standard Service Hours

    Support personnel will be available for routine requests 24 hours a day, including weekends and national holidays.

  6. Service Charges
    1. You will pay for the Hosting Services the charges specified in the Order Confirmation;
    2. Charges are set for the initial Term as defined in the Order Confirmation and thereafter are subject to review by Spondoolies giving to You not less than 30 days written notice;
    3. Charges are payable within 4 days of the date of the invoice unless specified otherwise on the Order Confirmation;
    4. Spondoolies reserves the right to payment of a security deposit and/or guarantees from You.
    5. If the Services have been suspended pursuant to the terms and conditions of this Hosting Services Agreement You shall pay the reconnection fee in full and provide any deposit or guarantee that Spondoolies may require pursuant to Section 6.6 prior to recommencement of any services. The reconnection fee shall be the fee laid down by Spondoolies from time to time.
    6. The Order Confirmation shall set out the billing method applicable to this Hosting Services Agreement.
    7. Within the Term, defined in the Order Confirmation, Spondoolies shall pass on to You the cost of any increase in the cost of power supplied to Spondoolies to a maximum increase of a sum equivalent to 10% of the annual Charges for the Services within the initial term, with 30 days notice being provided.
    8.  After the Term, Spondoolies shall pass on any increase in the cost of power supplied to Spondoolies, with 30 days notice being provided.
  7. Undertakings by You

    You undertake:

    1. to comply strictly with the provisions of the License specified in Section 2 above and the other terms and conditions of this Hosting Services Agreement;
    2. to Comply with Spondoolies’s Terms and Conditions as specified in the Agreement;
    3. to remotely operate, supervise and control use of  the Licensed Space and the Equipment located therein in accordance with the terms of the License specified in this Hosting Services Agreement;
    4. to pay the Charges;
    5. You agree and accept that you will be entitled to no refund or credit due to failure by Spondoolies to meet the Targets and You indemnifies Spondoolies against all costs, claims, damages and proceedings whatsoever arising from such failure;

      You shall not and shall procure that its Representatives shall not directly or indirectly:-

      (a)     misuse or abuse any Spondoolies property or equipment or third party equipment;

      (b)     engage in any activity that is in violation of the law or aids or assists any criminal activity while on the Location or in connection with the Services.

    6. You agree that You shall defend, indemnify, save and hold harmless Spondoolies from any and all demands, liabilities, losses, costs and claims, including all legal fees, that may arise or result from any service provided or performed or agreed to be performed by You, its clients, agents, employees or representatives. (1) any injury to person or property caused by any products sold or otherwise distributed in connection with the Services; (2) any material supplied by You infringing or allegedly infringing on the proprietary rights of a third party; and (3) copyright infringement.
    7. Any equipment or goods sent at Your request or on Your behalf from Spondoolies shall be entirely at Your own risk and at Your expense.
    8. You shall indemnify Spondoolies and hold it harmless against any and all costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which Spondoolies incurs or suffers as a result of:
      • any claim that the presence of the Equipment at the Property (or its installation or use there) infringes the intellectual property rights or industrial property rights of a third party;
      • any claim arising from the content or data stored on or transmitted through the Equipment;
      • any damage to the Property or any third party’s equipment at the Property caused by a Third Party;
      • any damage done to the Property or any third party’s equipment at the Property caused by You.
  8. Support not included and which will be charged for if provided

    The following additional services are supplied by Spondoolies at its own discretion after receiving a written request from You. Spondoolies is not obliged to provide any of the services described below, but acknowledges that, at the specific request of You, it may agree to do so. If so, You shall pay Spondoolies the prevailing charges for any such services at its prevailing standard rates or as otherwise agreed.

    1. Support of the Equipment, software, accessories, attachments, machines, systems or other devices not supplied by Spondoolies nor previously agreed in writing between the parties
    2. Rectification of lost or corrupted data arising for any reason other than Spondoolies’s own negligence.
    3. Support rendered more difficult because of any unauthorized changes, alterations, additions, modifications or variations to the Licensed Space or to Your Equipment
    4. Attendance to faults and rectification of damage caused by using the Licensed Space outside the terms of this Hosting Services Agreement
  9. Acceptable Use Policy

    The Acceptable Use Policy below defines the actions which Spondoolies considers to be abusive, and thus, strictly prohibited. In using Spondoolies’s Services you agree to the conditions herein. Should any action be taken by Spondoolies in the suspension or the withdrawal of Services You shall forgo any claims against Spondoolies in respect of refunds for unused Services and any performance claims against Spondoolies.

    You shall not participate in or facilitate any illegal activity of whatsoever kind, in any jurisdiction (i.e. Your jurisdiction and the jurisdiction of the Licensed Space).

    You shall not deliberately or maliciously cause or allow to be caused any disruption to Spondoolies’s Services, its servers, network or other infrastructure, or any other networks or services on the internet.

    We reserve the right to modify these Policies from time-to-time in our sole discretion. We will notify you of any such modifications either via e-mail or by posting a revised copy of the Policies on our Web Site.

  10. Interest

    Interest shall be paid on Charges which are not paid within the period set out in Section 6.3 at the highest rate applicable to late payments, as specified in any applicable law.

  11. Term and Termination
    1. This Hosting Services Agreement will commence on the date of signing by both parties on the Order Confirmation (“Commencement Date”) and will continue for the Term specified in the Order Confirmation and thereafter until or unless either party gives to the other not less than 30 days notice to expire at any time after the initial Term subject to earlier termination as hereinafter contained.
    2. Either party may by notice in writing to the other party terminate this Hosting Services Agreement forthwith if any of the following events will occur, namely:
      1. if the other party is in breach of any term, condition or provision of this Hosting Services Agreement or required by the law relating to this Hosting Services Agreement (including but not limited to non payment) and has failed to remedy such breach (if capable of remedy) within 14 days of having received notice from the first party specifying the nature of the breach;
      2. if the other party, being a body corporate, shall present a petition or have a petition presented by a creditor for its winding up, or convene a meeting to pass a resolution for voluntary winding up, or shall enter into any liquidation whether compulsory or voluntary (other than for the purposes of reconstruction or amalgamation), shall call a meeting of its creditors, shall enter any composition or arrangement with its creditors, or shall have a receiver or administration of all or any of its undertaking or assets appointed, or shall be unable to pay its debts or shall cease to carry on business.
    3. Consequences of Termination
      1. On termination of this Hosting Services Agreement pursuant to Section 11.2 in the event of Spondoolies serving notice on You pursuant to Section 11.2.1 or if any event specified in Section 11.2.2 shall have occurred in relation to You, You will pay all Charges due and payable to Spondoolies, together with all costs and expenses properly incurred by Spondoolies in connection with the termination by Spondoolies of this Hosting Services Agreement, together with a sum covering the delivery of the Equipment to You.
      2. Upon termination of this Hosting Services Agreement, howsoever or whenever occurring, Spondoolies shall: (i) cease to be under any obligation to provide Services to You; (ii)all Equipment and data shall be returned by Spondoolies to You, at Your expense (as aforesaid) upon payment in full by You of all Charges due and payable but unpaid on the date of termination to the address provided by you in the ordering process. In the event that, for whatever reason, You refuse to receive the Equipment delivered to You or in case the address provided by You is wrong or no longer valid, Spondoolies shall be entitled to deliver Your Equipment to a third party supplier, located outside Israel, for scrapping, and You shall have no claim, demand or suit against Spondoolies for doing so.
  12. Liability
    1. Except to the extent that by the law relating to this Hosting Services Agreement it is not lawful to exclude such liability, Spondoolies will not be liable to You or to any person for any loss or damage whatsoever or howsoever caused, except as provided in 12.4 below, arising directly or indirectly in connection with this Hosting Services Agreement or the Services carried out hereunder.
    2. Notwithstanding the foregoing generally, neither party shall be liable for indirect or consequential loss or damage including, but not limited to loss or damage to the Equipment or to other equipment or property (whether or not the same may be in either party’s care, custody or control), or to data, or for loss of profit, business, revenue, goodwill or anticipated savings.
    3. In the event that any exclusion of liability contained herein shall be held to be invalid for any reasons and Spondoolies becomes liable for loss or damage that may be limited, such liability shall be limited to the total rental charge paid for the space for the Term specified in Section 11.1 above
    4. Neither party excludes liability for death or personal injury to the extent that the same arises from the negligence of one of the parties, its employees, agents or authorized representatives.
    5. Spondoolies’s total liability for loss of or damage to Equipment of You that caused directly by any breach of the terms of this Hosting Services Agreement by Spondoolies shall be limited in aggregate to the sum of US$3,000.
    6. Your total liability for damage to Spondoolies’s property or the property of a third party occupying space in the Location caused by a breach of Your obligations under this Hosting Services Agreement will be limited to a sum equal to twenty times the Charges for co location payable for the initial Term.
  13. Assignment

    You will not assign or otherwise transfer all or any part of this Hosting Services Agreement without the prior written consent of Spondoolies.

  14. Cross-claims and Set-offs

    You hereby waive any and all existing future claims and set offs against any installment, charge or other payment due hereunder and agrees to pay the charges and other amounts due hereunder regardless of any set off or cross claim You may have against Spondoolies.

  15. Waiver

    Failure or neglect by Spondoolies to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Spondoolies’s rights hereunder nor in any way affect the validity of the whole or any part of this Hosting Services Agreement nor prejudice Spondoolies’s rights to take subsequent action..

  16. Notices

    All notices to or by the respective parties hereto will be in writing and will be made in accordance with the provisions of the Agreement.

  17. Headings

    The headings of the terms and conditions herein contained are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions.

  18. Severability

    In the event that any of the terms, conditions or provisions of this Hosting Services Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extend, such term, condition or provision shall to that extent be severed from the body of this Hosting Services Agreement an d the remainder thereof shall continue to be valid and enforceable to the fullest extent permitted by law.

  19. Force Majeure

    Spondoolies shall be under no liability to You in respect of anything which, apart from this provision, may constitute breach of this Hosting Services Agreement arising by reason for Force Majeure namely, circumstances beyond the control of Spondoolies which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion, including acts of local government and parliamentary authority; inability to provide support or supply materials; breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and nay or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether or either of the parties hereto or any other employer)

  20. Law

    The parties hereby agree that this Hosting Services Agreement shall be construed in accordance with the laws of the State of Israel.

  21. Rights of Third Parties

    Nothing in this Hosting Services Agreement is intended to create any right which may be enforceable by a third party against either party to this Hosting Services Agreement.

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