Codefactori Managed Hosting Agreement


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APPROVED

CODEFACTORI MANAGED HOSTING AGREEMENT

This Addteq Codefactori Managed Hosting Agreement (“Agreement”) is made and entered into on the Effective Date (as defined in Section 1, below), by and between Addteq, Inc. (“Addteq”) a Delaware corporation, and [__________________________] (“Customer”), with its principal place of business at [                                                                                                 ] (Addteq and the Customer are individually referred to as a “Party” and collectively referred to as “Parties”)

RECITALS

A. Addteq understands the needs for tightly integrated development infrastructure; one that gives the Customer the ability to release its code sooner, with less issues, so the Customer is able to focus more on coding and less on managing  infrastructure;

B. The Codefactori services performed by Addteq for Customer and consists of a complete integrated development infrastructure solution that  is provided for Customer software development teams containing the tools of their choice, customized and integrated to their liking, hosted on Addteq’s secure cloud servers (“Services”); and

C. Addteq and the Customer desire to enter into this Agreement.

NOW THEREFORE, the Parties intending to be legally bound hereby agree as follows:

Section 1. Contract Period

1.1. This Agreement is effective on the latest date that it is signed by Customer and Addteq (“Effective Date”). The initial term of this Agreement is twelve (12) months starting from the Effective Date (“Initial Term”). The Recitals are incorporated into this Agreement and made a part hereof.

1.2. The Initial Term shall automatically renew for additional twelve (12)  month periods (“Additional Term”), unless either Party gives written notice to the other Party of cancellation at least ninety (90) days  prior to the end of the respective, Initial Term or the Additional Term  (The Initial Term and Additional Term are referred to as the “Term”) .

1.3. If Customer terminates this Agreement or elects to reduce the number of the Customer’s authorized end users (“Users”) of the Licensed Material (as defined in Section 5.1, below) prior to the end of the Term, then, , there shall be immediately due and payable by Customer an amount equal to the 100% of the Fees (as defined in Section 2) that are due and payable at any time for the remainder of the Term, , which include those Fees for use of the Licensed Material and Services actually rendered prior to the termination of this Agreement or reduction of Users.

Section 2. Fees, Billing and Payment

 2.1. Fees. The fees to be paid by Customer to Addteq (“Fees”) consist of the following:

A. A one-time non-refundable migration fee (“Migration Fee”), which will be set forth in an invoice that Addteq provides to the Customer. The Migration Fee is based on Addteq’s time and effort required for the migration of the Services (“Migration Services”). The Migration Services and other  Services will not be commenced until the Migration Fee is paid.

B. During the Term, the monthly hosting fees for the Services (“Monthly Hosting Fees”) will be set forth in a separate invoice that Addteq provides to the Customer on a monthly basis for each thirty (30) day period after the Effective Date. Assuming that the Customer has paid the Migration Fee, the Customer, will be provided a thirty (30) day free trial period to get onboarded and to start utilizing the Service. Customer will be charged full Monthly Hosting Fees after the end of free trial period even if the System is not utilized and the Customer  will pay each Monthly Hosting Fee within thirty (30) days of the date of the invoice.

C. If the Customer desires to pay for the Services on an annual basis, rather than on a monthly basis, Addteq will send the Customer an invoice with the annual estimated fees for the Services (“Annual Invoice”). The payment of the annual estimated fees for the Services by the Customer will be applied to pay invoices for Monthly Hosting Fees. If the annual estimated fees paid by Customer are not sufficient to pay all monthly invoices for the Monthly Hosting Fees, the Customer will need to make additional payments to Addteq. In addition, based on the amount of the payment by Customer to Addteq for the annual estimated fees, the Customer will be eligible for certain credits in accordance with the terms attached to the Annual Invoice, which will be subject to the terms of this Agreement

 

2.2. Payments of Fees. Payments of the Migration Fees are to be paid in full by Customer to Addteq in advance of the commencement of each Term. Services will not start until the payment all Migration Fees are received by Addteq.

2.3. Termination of Services. Services will be terminated if payments of the Fees due are not received by Addteq by within seven (7) days of written notice by Addteq to Customer via email or fax (as set forth on the signature page).

2.4. Suspension of System. If the Customer’s payment of any Fees is past due, Addteq will provide a message to all the Users regarding the non-payment of any Fees. The System will be suspended for the Customer and Users after thirty (30) days after the non-payment and all data held in the System will be purged two (2) weeks after suspension of the System. The “System” is email and in app notification.

2.5. Free upgrades and Secondary/Staging Instances. Provided that Customer has made all payments due under this Agreement, Customer may utilize up to three (3) software upgrades of the Services for each twelve (12) month period of this Agreement at no charge to Customer. Addteq will also provide Customer at no charge a complimentary temporary staging or secondary instance (“Complementary Staging”) to validate each of the three (3) software upgrades that Customer is entitled to receive for up to two (2) weeks; provided, however, if the Customer uses any Complementary System in excess of  the two (2) week period, the Customer must pay Addteq for each month (or any portion of the each month) at a monthly rate for the Addteq equivalent user tier, with a minimum 100 user tier,  this Complimentary System is terminated.

Section 3. Representations and Warranties

3.1. General. Each Party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.

3.2. Compliance with the Laws. Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Agreement, including copyright, privacy and communications decency

3.3. Acceptable Use.

A. Customer is solely responsible for the content of any, and all, postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the

B. Customer represents and warrants that it will (i) not use the Services in a manner that is prohibited by any applicable law or regulation, or to facilitate the violation

of any law or regulation or will disrupt a third parties’ similar use or Licensed Material. and (ii) not violate or tamper with the security of any Addteq computer equipment or program.

C. If Addteq has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Addteq may suspend the Services immediately with or without notice to Customer. Addteq may terminate the Agreement as contemplated in Section 10 if Customer fails to adhere to the foregoing acceptable use

3.4. DISCLAIMER. EXCEPT AS OTHERWISE SET FORTH HEREIN. ADDTEQ MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY RELATED SERVICE OR SOFTWARE. ADDTEQ HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY ADDTEQ, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.

Section 4. Limitation of Liability

4.1.            UNDER NO CIRCUMSTANCES WILL ADDTEQ OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ADDTEQ'S RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY ADDTEQ OF THIS AGREEMENT, ADDTEQ'S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AVERAGE MONTHLY AMOUNT PAID TO ADDTEQ BY CUSTOMER HEREUNDER MULTIPLIED BY TWELVE (12).

Section 5. Licenses

 5.1. Addteq hereby grants to Customer a personal, nonexclusive, nontransferable license during the Term to use, in an object code form, all software and related documentation provided by Addteq to Customer under this Agreement (“Licensed Material”).

5.2. Customer agrees to ensure that its employees and all users of Licensed Material hereunder comply with the terms and conditions set out in this Customer shall be responsible for the failure of its employees and users to comply with the terms of this Agreement.

5.3. Customer agrees to and will ensure that its employees. owners, officers, directors, agents and all users of Licensed Materials, refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Licensed

5.4. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only for Customer’s internal business purposes, shall not be reproduced or copied in whole or in part, and shall not be removed from the United

5.5. Addteq strongly recommends that the Customer keep the Licensed Material up to date with Addteq. Addteq shall not have any liability whatsoever for the security, data integrity or damage that the Customer suffers from using Licensed Material after the term of this Agreement has expired.

Section 6. Customer Data

6.1. All data that the Customer places on the System is owned by Customer and is to be strictly held as confidential. Only Customer's name will be held on record by Addteq for the sole purpose of marketing and/or case studies. Addteq will not disclose Customer's intellectual property in any manner or nature pursuant to non-disclosure agreement. Upon the expiration/cancellation of this Agreement, with or without default, for any reason Addteq shall delete and destroy all Customer data residing on Addteq provided equipment (“Equipment”). Customer, however, has the option to receive a backup of data prior to deletion; provided that Customer has paid to Addteq all Fees and other payments due under this Agreement.

6.2. Expiration/Cancellation and Transition Services. Upon expiration/cancellation of this Agreement for any reason other than due to an uncured material breach by Customer, and provided Customer is not in default of its payment the Fees or payments under this Agreement, or obligations under the other applicable agreement, Addteq shall provide Customer with reasonable and orderly transition services and information and documentation that reasonably may be needed by Customer in connection with the orderly and expeditious transition of the Services (“Transition Services”). The Transition Services shall be provided for a period of up to sixty (60) days, provided Customer continues to make timely payments of the Monthly Fees and attributable to all other agreements between the Customer and Addteq.

Section 7. Termination

7.1.      If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for thirty (30) days after receipt of written notice, the other Party may terminate this Agreement; provided, however, that where the breach is the failure of payment by Customer of any Fee when due, Addteq, may, at its option, terminate or suspend Services with a written notice.

7.2.      This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors. Notwithstanding the foregoing, Customer shall be responsible for payment of all charges under a terminated Agreement incurred as of the effective date of termination if and when Addteq has reasonably and adequately provided services pursuant to the Service Level Agreement in Section 9.

Section 8. General Provisions & Force Majeure

 8.1. This Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings both written and oral, among the parties with respect to the subject matter  hereof and thereof. No modification or termination of any provisions of this Agreement shall be binding unless in writing signed by an authorized officer of each of the Parties.

8.2. No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon Addteq or effective for any purpose, unless accepted by Addteq in writing. It is further expressly understood and agreed that, there being no expectations to the contrary between the Parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, Addteq’s industry or between the Parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.

8.3. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the Parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the

8.4. The Licensed Materials shall not be exported or removed from the United States.

8.5. This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of Addteq. The Company, however, may freely assign this Agreement in connection with a sale, merger or other reorganization of its business and operations as long as any successor company assumes all of the obligations hereunder.

8.6. If any terms or provision of this Agreement shall be held to be invalid, illegal or unenforceable, by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force. To the extent permitted by law, each Party waives any provision of law which renders any provision of this Agreement invalid or unenforceable in any respect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible

8.7. No delay or failure of Addteq or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Addteq or Customer of any breach of any provision of this Agreement must be in writing by the waiving Party and shall not operate or be construed as a waiver of any subsequent or other

8.8. In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement as provided in Section 8. The provisions in this Section 8.9, however, shall not apply to the payment obligations of Customer under Section 2.

8.9. On Addteq's request, no more frequently than annually, Customer shall furnish Addteq with a signed certification verifying that the Licensed Material is being used pursuant to the terms of this Agreement and listing the locations where the Licensed Material is being

8.10. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

8.11. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New The Parties hereby waive a trial by jury for all disputes under this Agreement.

8.12. Notices. All notices or other communications given under this Agreement shall be in writing and shall be deemed to have been duly given upon receipt when personally delivered, faxed or emailed (with confirmation of receipt), or when sent by recognized overnight delivery service or otherwise, to the respective address set forth on the signature page hereof.

Section 9. Service Level Agreement (“SLA”)-

9.1.     The SLA is attached as Appendix A.

Section 10. Expiration/Cancellation and Transition Services

 10.1. Upon expiration/cancellation of this Agreement for any reason other than due to an uncured material breach by Customer, and provided Customer is not in default of any of its payment obligations under the applicable Agreement, Addteq shall provide Customer with reasonable and orderly transition services and information and documentation that reasonably may be needed by Customer in connection with the orderly and expeditious transition of the Services (“Transition Services”). The Transition Services shall be provided for a period of up to sixty (60) days, provided Customer continues to make timely payments of the Monthly Fees during such sixty (60) day period.

10.2. Upon the expiration/cancellation of this Agreement for any reason Addteq shall delete all Customer data residing on Addteq provided

Section 11. Remedies

 11.1. If Addeq fails to provide system availability in accordance with the SLA (other than delays from the Customer due to their failure to abide by the terms of this Agreement and the attachments hereto, or due to inefficiencies on their end) then Customer is entitled to a credit of up to one (1) day’s Monthly Fees for the Services.

11.2. If Customer exceeds eight (8) or more cumulative full hours of unavailability during a calendar month, Customer shall be issued a total credit of one (1) month’s Monthly Fees under the applicable Schedule for the calendar month in which Addteq failed to meet the system availability

11.3. Addteq shall not be responsible for the failure to meet a Service Level or taking down the system if as a result of : (a) the Customer failing to make a required payment ; (b) the negligence or intentional acts or omissions of Customer or its employees or agents; (c) the failure of any software to perform in accordance with its specifications and such software failure is not caused by Addteq’s negligence or  willful misconduct; or (d) Customer’s failure to maintain a maintenance contract on such

11.4. In addition, if there is any scheduled maintenance (including upgrades, repair or component replacement) or other mutually agreed-to downtime the SLA time period will be stopped, and will only resume once the maintenance or mutually agreed upon downtime ends. In addition, the SLA time period will be stopped for  downtime as a result of: (a) Customer-made changes to applications or data; (b) Customer requiring Addteq to maintain, or continue to run unsupported software releases; (c) Customer refusing Addteq maintenance changes for any reason: or (d) if applicable, Customer retaining access control to the devices for which Addteq is providing the Services.


[SIGNATURE PAGE]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Legal

 

Company

Addteq


Signature


__________________________

 

 ________________________

Name



Title



Date



APPENDIX

SERVICE LEVEL AGREEMENT

Cost Estimate: _______________