Public Cloud Operations Center Services Agreement

This Network Operations Center Services Agreement (this “COCA”) is made is made as of the date of the signup (the “Effective Date”) by and between Matrix I.T. CloudZone Ltd., (“CloudZone”) an Israeli company with its registered office at 66 HaMasger St, Tel-Aviv, Israel, and you or the entity you represent (“Customer”). CloudZone and Customer shall be referred to herein, each separately, as a “Party” and jointly as “Parties”.

1.       GENERAL

a.   This COCA governs the terms and conditions under which CloudZone, as an independent contractor, will perform any services, as set forth in section 3 bellow. The Services will be provided as part of a subscription account for the applicable Term and a monthly Fees.

b.   Any future services in addition to the Services the Parties may agree to herein (“Additional Services“) shall be set forth in an amendment and shall at such time be incorporated into and become part of this COCA.

2.       TERM AND TERMINATION

a.   This COCA shall commence as of the Effective Date and shall automatically renew for successive one-month periods, unless terminated upon sixty (60) days prior written notice by either Party to the other (the “Term”). CloudZone may suspend Customer’s Services (in whole or in part), and/or terminate this COCA seven (7) days following CloudZone’s provision of notice to Customer if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to CloudZone is invalid or charges are refused for such payment mechanism, and Customer fails to cure such payment obligation default or correct such payment mechanism problem within such 7-day period. For the avoidance of doubt, Customer’s payment obligations under this COCA shall not be suspended or terminated if CloudZone suspends or terminates this COCA pursuant to this section.

b.   Upon termination of this COCA by Customer or CloudZone, CloudZone may retain any payments made to CloudZone and all unpaid Fees. Fees for the remainder of the then-current Term will become immediately due and payable.

3.       SCOPE OF SERVICES.

a.   Customer hereby orders from CloudZone and CloudZone assumes the performance of those services specified in this COCA hereto, entitled CloudZone Services (the “Services”), which document is hereby incorporated into this COCA by this reference. The Services shall be operated 24 hours a day 7 days a week 364 days a year, during the Term and in accordance with the terms herein.

b.   Without derogating from the generality of the above, the Services will only be provided remotely by CloudZone and will include the Services listed herein.

c.   As part of the Services and for their performance, CloudZone will use the Customer’s systems (the “Customer System“) to view, review and produce data generated from Customer’s System to this COCA. Customer will be responsible for making the adjustments and granting the necessary permissions to communicate with Customer System in such a way that CloudZone can perform all of the services set forth in this COCA through Customer System and Customer’s offices only.

d.   Notwithstanding anything to the contrary in this COCA, the parties agree that the Services do not include information security services and cyber risk prevention. Notwithstanding the foregoing, to the extent that within the framework or during the provision of the Services under this COCA,  a fear of a cyber event or a concern for any information security event will be reported to CloudZone, it will immediately and in writing will be reported by CloudZone to Customer.

e.   Severity Level Definitions:

“Severity Level ” means the total outage of service or mission critical application availability such that Customer cannot continue its business due to the severity of the outage and a material degradation of service or availability of mission critical application availability, or production solution components such that Customer can continue operating its business, but in a negatively impacted and degraded mode.

“Immediate Support Request” means a ticket created in CloudZone support portal by Customer with respect to a Severity Level event, which ticket creation is immediately followed by Customer initiating and participating in a telephone conversation with CloudZone support with respect to the contents of that ticket.

f.    Communication during Incident Management. Communication is a key element in reporting and resolving service incidents. Unless otherwise noted, CloudZone and Customer will communicate via CloudZone ticket system during the incident management process. All communications shall include: • Support ticket reference number • Time and date of transaction in question • Description of incident • List of actions taken to verify and isolate the problem

g.   Opening/Reporting an Incident. CloudZone will send Customer a notification in accordance with the Customer’s solution escalation action plan (SEAP), advising that the Services are unavailable. Regardless of whether CloudZone or Customer reported the incident, Customer will be responsible for opening and tracking the support ticket for the incident until it is resolved.

h.   Working the Incident. Once an incident has been reported and a Customer support ticket created, CloudZone and Customer will work together to address the incident. This process involves: • An initial response to the incident report • Status updates • Escalation • Communication and resolution times for working the incident.

i.    Initial Response. Upon receiving the notification for an opened incident, CloudZone will respond to Customer via CloudZone ticket system. Response intervals vary depending on incident severity, as indicated in section 4 hereinafter, “CloudZone Performance Standards.”

j.    Status Updates. Update intervals will vary depending on the incident severity as indicated in section 4. While an immediate support request or a Severity Level event is being resolved, CloudZone will send periodic resolution updates.

4.       CLOUDZONE PERFORMANCE STANDARDS

This section shall define the event types, event descriptions, and CloudZone’s performance standard for each event type:

a.   Event Type Description CloudZone Performance Standard:

• Severity Level Event – Initial response to event reported by CloudZone’s, monitoring system or Customer. CloudZone will start to work on the resolution – 60 minutes – status update – every 2 hours.
• Cloud services CloudZone (“CSS”) initiated scheduled Event – Notified via e-mail – No more than 24 hours from maintenance or outage notification to CloudZone.
• CloudZone or CSS unplanned outage – Incident report via e-mail – Within 48 hours of incident.

 

b.  Credits:

If CloudZone fails to meet the service levels described in this section 4 (the “Incident Management Service Level“) in any given calendar month, and the root cause of such support request is not the result of any application or coding errors, CloudZone will credit Customer in accordance with the following schedule (the “Standard Service Credit for Incident Management“):

Monthly cumulative incident service Ccdits (percentage of service Fee) management failures

• 3-5 3.3%
• 6-10 6.6%
• 11-20 10%
• More than 20 33.33%

*Based on a 30-day billing cycle.

c.   In no event shall any single ticket result in more than one incident management failure, for purposes of calculating Customer credits pursuant to this section 4 above. The Standard Service Credit for Incident Management is CloudZone’s sole and exclusive liability and Customer’s sole and exclusive remedy for any failure of CloudZone to meet the Incident Management Service Level.

5.       CSS COCA

Customer’s sole and exclusive remedy in connection with its use of and/or any failure of the Services linked to this COCA shall be pursuant to and as limited by the COCA, CSS which service level agreement(s) shall be considered “passed through” to Customer.

6.       EXCEPTIONS TO THE CREDIT PROCESS

A credit will not be issued due to failures that are, as determined by CloudZone, in its good faith reasonable judgment, a result of: • Customer-initiated work that is independently generated by Customer or Services interruptions requested by Customer; • Customer-required operating system software revisions and hardware/software configurations that are not CloudZone tested/approved; • Customer Content, Customer software or Customer hardware; • The acts or omissions of Customer, its employees, agents, third-party contractors or vendors, or anyone gaining access to the solution , CloudZone software, or the Customer software at the request of Customer; • Violations of the Policies; • Reasons of Force Majeure (as defined in the COCA); • DNS issues outside the direct control of CloudZone; • Patches or antivirus updates deployed in production environments which contain code faults, flaws or other errors attributable to the third-party vendors that created such code; • Any suspension of Services pursuant to the terms of the Agreement; or • A denial-of-service attack (DoS Attack) or distributed denial-of-service attack (DoS Attack), wherein one or more compromised systems attack a single target, designed to make resources unavailable to its intended users.

7.       MAXIMUM CREDITS AVAILABLE 

The total credit available to Customer in any particular month under this COCA shall in no event exceed the Service Fee for that month.

8.       FEES

a.   The Services price will be the highest of two thousand US dollars (US$2000) or fifteen percent (15%) of Customer’s respective account value (the “Fees”). Except as otherwise specified herein, (i) Fees are based on Services purchased, (ii) payment obligations are final, non-cancelable, and non-changeable.

b.   Customer will provide CloudZone with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to CloudZone. If Customer provides credit card information, Customer thereby authorizes CloudZone to charge such credit card for all Services for the applicable Term. CloudZone will invoice Customer for all Fees and charges shall be made each month. CloudZone Invoiced charges are due net 30 days from the invoice date. For Services that are activated in the middle of a calendar month, CloudZone reserves the right to invoice Customer a pro-rata portion of that month’s Fees taking into account the number of days in the month during which Customer had access to the applicable Service. Customer is responsible for providing complete and accurate billing and contact information to CloudZone and notifying CloudZone of any changes to such information.

c.   Customer is solely responsible for the payment of all taxes (other than taxes based on CloudZone’s income), fees, duties and other governmental charges, and any related penalties and interest, arising from the payment of Fees to CloudZone under this COCA for the delivery or license of products hereunder. Customer will make all payments of fees to CloudZone free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to CloudZone will be Customer’s sole responsibility, and Customer will provide official receipts issued by the appropriate taxing authority, or such other evidence as CloudZone may reasonably request, to establish that such taxes have been paid. Customer will indemnify and hold CloudZone harmless for any liability (including penalties and interest) resulting from Customer’s failure to fulfil its responsibilities under this section.

d.   Late Payments. Customer shall pay CloudZone a service charge for all overdue amounts equal to the lesser of 1.5 percent (1.5%), calculated on the aggregate overdue balance, at the end of each month or the maximum amount permitted by law.

9.       SERVICES WARRANTY. CloudZone hereby represents and warrants that any Services provided hereunder shall be provided in a competent and workmanlike manner in accordance with industry standards and that all statements and materials regarding its qualifications to perform the work contemplated under this COCA are true and correct and are not misleading. Customer agrees that CloudZone has no control of availability of Services on a continuous or uninterrupted basis. Customer agrees that from time to time the Services may be inaccessible or inoperable for causes beyond CloudZone’ reasonable control. CloudZone does not guarantee the integrity of data stored or transmitted via Customer’s system/hardware or via the Internet. CloudZone shall not be liable for the inadvertent disclosure of, or corruption or erasure of data transmitted or received or stored on Customer’s system, unless caused by the gross negligence or willful misconduct of CloudZone employees or anyone under CloudZone’ reasonable control.

10.    COVENANT OF NON-SOLICITATION. The Parties agree that they will not knowingly and directly solicit or attempt to solicit for employment or as an agent, advisor, consultant, representative, or independent contractor any persons employed by the other Party during the Term and for a period of one (1) year following the termination of this COCA. The foregoing restriction does not apply, however, to any employee or former employee of the other Party who responds to a general advertisement, online job posting, or other form of broad solicitation that does not directly or indirectly target employees of the other Party or who has been separated from employment with the other Party for at least six consecutive months before the date when the person is first recruited, solicited for hire, or offered employment.

11.    INDEMNIFICATION. CloudZone shall defend or settle, at its own expense, any third party claim, suit, or action against Customer, arising directly out of or relating to: (i) actual or alleged personal injury (including death) to the extent caused in whole or in part by CloudZone’ negligence, recklessness or willful misconduct; or (ii) CloudZone’ non-fulfillment or breach of any covenant under this COCA (a “Claim”), and will pay those costs (including but not limited to attorneys’ fees) and damages finally awarded against Customer in any such action that are specifically attributable to such Claim or those costs and damages agreed to in a monetary settlement of such Claim. CloudZone indemnification obligations herein are subject to a final judgment by a court of competent jurisdiction determining the CloudZone’s liability and are conditioned upon: (a) prompt notice by Customer to CloudZone of any claim, action or demand for which indemnity is claimed within seven (7) calendar days of the Customer receiving notice of such Claim (b) complete control of the defense and settlement by CloudZone, provided that no settlement may be made without the written consent of the Customer, such consent not to be unreasonably withheld or delayed; and (c) reasonable cooperation by Customer in the defense as CloudZone may request. Claims for infringement of intellectual property rights by third party products, shall be settled in accordance with and subject to the terms of such product licenses’ terms and conditions.

12.    LIMITATION OF LIABILITY. Except for damages caused by willful misconduct, fraud, breach of confidentiality and/or bodily injuries under this COCA, in no event will CloudZone or its respective licensors, CloudZone’s affiliates, employees or agents, be liable for loss of profits or business, use or data, or for interruption of business, or any other indirect, incidental, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action, notwithstanding the failure of essential purpose of any limited remedy. In no event will CloudZone’ aggregate, cumulative monetary liability for any damages arising from or related to this COCA, whether in contract or in tort or under any other legal theory (including strict liability and negligence), exceed the total amounts paid by Customer for the Services during the twelve (12) month period preceding the event that gave rise to the Claim.

13.    FORCE MAJEURE. Except for the obligation to make payments, non-performance of either Party’s obligations pursuant to this COCA or delay in performing same shall not constitute a breach of this COCA if, and for as long as, it is due to a force majeure event, including, but not being limited to, governmental action, or requirement of regulatory authority, shortage of transportation, war, epidemic, rebellion or other military action, fire, flood, nature catastrophes, act of God, or any other or any similar event, occurrence, condition or obstacles, which is beyond the reasonable control of that Party, that a Party is not able to overcome with reasonable efforts, or non-performance of obligations by a sub-contractor to a Party pursuant to any of the aforementioned reasons. The above notwithstanding, strikes and lock-outs shall be deemed a force majeure event.

14.    INTELLECTUAL PROPERTY

a.   License Grant. Either Party shall have a nonexclusive, non-transferable, non-sub licensable, revocable, royalty-free license, to use versions of the other Party’s software, utilized in connection with the Services (a “Licensed software”), solely as set forth in this COCA.

b.   software Use Restrictions. Either Party’s use (the “User “) of the other Party’s (the “Owner“) Licensed software, as applicable, is subject to the following: the User will not, and will not permit others to (a) modify, copy, or otherwise reproduce the Owner’s software in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or structure of the Owner’s software; (c) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Owner’s software or User’s right to the Owner’s software; or (d) remove any proprietary notices or labels on the Owner’s software. All rights not expressly granted to the User are reserved by the Owner or Owner’s licensors.

c.   Customer Content. Customer shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in any Customer’s data, content or other information maintained or otherwise stored on the Services’ products and in any Services’ products paid for by Customer (”Customer Content”). Customer will ensure that Customer Content and will not violate any applicable law and is solely responsible for the use of Customer Content. Customer is responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup Customer Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Customer Content from unauthorized access and routinely archiving Customer Content.

15.    MISCELLANEOUS

a.   Cooperation.  The Parties shall at any time and from time to time, upon the request of the other Party, do, execute, acknowledge, and deliver, or cause to be done, executed, acknowledged, and delivered, all such further acts, documents, and instruments as may be required to effect any of the transactions contemplated by this COCA.

b.   Assignment or Amendment.  Neither Party may assign this COCA, in whole or in part, without the prior written consent of the other Party. Notwithstanding the previous sentence, either Party may transfer or assign its rights and obligations under this COCA to a subsidiary or entity controlling, controlled by or under common control with such Party or to an entity that acquires such Party by merger or purchase of all or substantially all of that Party’s assets or stock not involving a direct competitor of the other Party.

c.   Notices Any notice provided pursuant to this COCA shall be in writing and shall be effective if delivered to the Parties at the addresses provided in the preamble of this COCA (a) if by hand delivery, upon receipt thereof, (b) if by next day delivery service, upon such delivery. If sent by e-mail, upon verified delivery evidenced by return e-mail of the recipient.

d.   Counterparts. This COCA may be executed in counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one instrument. Copies of executed counterparts transmitted by electronic means shall be considered original executed counterparts for purposes of this COCA.

e.   Governing Law.  This COCA shall be subject to Israeli law and the exclusive jurisdiction shall be of the competent court of Tel Aviv-Jaffa district, and each of the parties hereby submits irrevocably to the jurisdiction of such courts.

f.    Severability. If any provision of this COCA is declared unenforceable the remaining portions shall remain in full force and effect.

g.   Waiver of Breach.  Either Party’s failure to insist upon or enforce strict performance of any provision of this COCA, or delay in doing so, shall not be construed as a waiver of any provision or right.

h.   Headings. The headings contained in this COCA are for convenience of reference only and are not intended to have any substantive significance in interpreting this COCA.