Technical Support Agreement

THIS TECHNICAL SUPPORT AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND HOSTRAGON. READ IT CAREFULLY. AMONG OTHER PROVISIONS, IT CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS TECHNICAL SUPPORT AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE THE SERVICES.

1. Definitions.

1.1 Agreement means this Technical Support Agreement.

1.2 Applicable Law means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.

1.3 Beta Version means any version of any software offered by Hostragon for testing as determined by Hostragon in its sole discretion, including without limitation versions of the Software designated by Hostragon as "BETA" or "EDGE".

1.4 Complimentary Support has the meaning given in Section 2.6.2.

1.5 Hostragon means Hostragon or its parent company, AegisHawk LLC.

1.6 Hostragon Customer Portal means Hostragon’s customer service and Incident tracking system or such successor system as Hostragon may designate from time to time.

1.7 Hostragon Customer means an individual or entity who is not a Hostragon Reseller or Hostragon Reseller but has subscribed to Hostragon services.

1.8 Hostragon Reseller means a Hostragon Reseller who has met the requirements to become a Hostragon Reseller as determined by Hostragon.

1.9 Hostragon Reseller means a Hostragon Reseller who has entered into a valid and existing Partner Agreement with Hostragon.

1.10 Effective Date has the meaning given in the Support Pricing Agreement.

1.11 Enterprise Support has the meaning given in Section 2.6.2.

1.12 Incident means a request by you for assistance in addressing a single technical problem relating to the Software. Hostragon shall make the final determination as to what constitutes an Incident in its sole discretion.

1.13 Intellectual Property Rights means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under Applicable Law, including all applications for and registrations of any of the foregoing.

1.14 Licensed Server or Licensed Servers means a production server that Hostragon has configured and delivered to you.

1.15 Normal Business Hours means 7:00 a.m. to 7 p.m. Japan Standard Time (JST) during business days and excluding holidays in the case of billing related Incidents. Hostragon may amend the definition of Normal Business Hours from time to time in its sole discretion by providing notice of such change on its website.

1.16 Concierge Support means the Services provided by Hostragon to individuals or entities who have purchased Concierge Support from Hostragon.

1.17 Scheduled Service Outage means a period of time specified by Hostragon during which Hostragon will not provide the Services.

1.18 Services means the technical support services provided by Hostragon in connection with this Agreement whether such services are provided via email, telephone support, the Hostragon website (including without limitation the Hostragon Customer Portal, the documentation, Frequently Asked Questions or discussion forums located on the website) or by any other means.

1.19 Software means the Hostragon software program(s) including cPanel, Plesk and other third-party software such as Softaculous that we use to offer the Services, corresponding documentation, source code, object code, Updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation.

1.20 Standard Support has the meaning given in Section 2.6.2.

1.21 Submissions has the meaning given in Section 3.5.

1.22 Support Fees has the meaning given in Section 4.

1.23 Support Pricing Agreement means:

• the agreement entered into between you and Hostragon for the provision by Hostragon of the Complimentary Support, Telephone Support or Concierge Support;
• the Pricing and Term Agreement entered into between you and Hostragon with respect to the Software which sets forth (among other things) the term, any applicable Support Fees and the number of Incidents you may submit under this Agreement;
• the term, termination and the technical support provisions of the Hostragon Reseller Agreement entered into between you and Hostragon; or
• the term, termination and the technical support provisions of any agreement entered into between you and a Hostragon Customer, Hostragon Reseller or Hostragon Reseller for the provision of technical support services related to the Software.

The Support Pricing Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.

1.24 Telephone Support means the Services provided by Hostragon over the telephone to individuals or entities who have paid the Support Fees applicable to telephone support.

1.25 Term has the meaning given in the Support Pricing Agreement.

1.26 Territory means the world, except to the extent that the provision of the Services or the use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13.

1.27 Third Party Users means authorized end users of the Software on Licensed Servers.

1.28 Trademarks means all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of Hostragon. Hostragon may add to the foregoing nonexclusive list of Trademarks from time to time) and which may be updated by Hostragon in its sole discretion from time to time.

1.29 Custodian Support Has the meaning given in section 2.62.

1.30 Unscheduled Service Outage means a period of time during which Hostragon is unable to provide the Services or during which it is not commercially reasonable for Hostragon to provide the Services as a result of unforeseen circumstances including but not limited to force majeure events such as those set forth in Section 9.1.

1.31 Updates means any bug fixes, patches and other modifications of the Software provided by Hostragon.

1.32 Virtual Private Server means a virtual server or virtual machine operating on single physical server upon which multiple virtual servers may operate.

1.33 You or Your means or refers to the individual or entity entering into this Agreement with Hostragon, whether or not such terms are capitalized in this Agreement.

2. Services.

2.1 Provision of Services by Hostragon.

Subject to the terms and conditions of this Agreement, Hostragon shall use commercially reasonable efforts to provide you with the Services during the Term provided that you have not exceeded:

• the number of Incidents set forth by the Support Pricing Agreement; or
• a commercially reasonable number of incidents as determined by Hostragon if the Support Pricing Agreement does not specify the maximum number of Incidents.

Notwithstanding the foregoing, Hostragon may in its sole discretion elect to provide, to not provide or to provide on a limited basis the Services.

2.2 Normal Business Hours.

Hostragon shall use commercially reasonable efforts to provide the Services during Normal Business Hours, except in the event of a Scheduled Service Outage or an Unscheduled Service Outage.

2.3 Scope of Services.

Hostragon will provide the Services only in connection with Incidents that it determines are related to the Software or any third-party applications included with the Software. Hostragon will not provide the Services for Incidents that it determines are related to third-party software not included with the Software, operating systems, hardware or networks unless Hostragon determines, on a case-by-case basis and in its sole discretion, that such issues are reasonably related to the Software or any third-party applications included with the Software.

Hostragon will only provide support for third party software licensed through Hostragon when you also have a license for Hostragon & WHM for the same system.

2.4 Web, Email and Telephone Support.

Hostragon shall use commercially reasonable efforts to provide the Services via its website using the Hostragon Customer Portal or via email communications. Hostragon will provide Telephone Support on a per-Incident basis if you pay the additional Support Fee as set forth in Section 4 (Support Fees).

One Incident of Telephone Support can involve multiple telephone communications until Hostragon closes the Incident pursuant to Section 2.8 (Resolution of Incidents). Hostragon may on a case-by-case basis and in its sole discretion elect to provide support via telephone free of charge if it deems it necessary to do so in the event of a complicated or time-consuming Incident. Hostragon shall provide the Services, and all Incidents shall be submitted, in the English language only.

2.5 Location of Services.

Hostragon shall use commercially reasonable efforts to provide the Services at any facility it designates for the provision of such Services. The Licensed Server for which a particular Incident is submitted may be located in anywhere in the Territory. Hostragon shall not provide the Services on site unless when explicty designated as such via a written agreement.

2.6 Submission of Incidents.

2.6.1 Hostragon Customer Portal.

Except for Telephone Support Incidents which must be purchased via the Hostragon website, all Incidents must be submitted via the Hostragon Customer Portal.

2.6.2 Eligibility for Submission of Incidents.

If you are a Hostragon Reseller or Hostragon Customer without a managed hosting account, Incidents you submit by shall be deemed Complimentary Support.

You may obtain Concierge Support by paying the applicable Support Fees for Concierge Support. You may obtain Custodian Support by meeting the qualifications established by Hostragon.

2.6.3 Support.

Subject to the terms and conditions of the Partner Agreement, Hostragon Resellers may submit Incidents to the Hostragon Customer via our support portal or as Hostragon may designate from time to time).

2.6.4 Submission Details.

In order for Hostragon to provide the Services to you, you must provide all information requested by Hostragon with respect to each Incident. If you fail to provide sufficient detail regarding the Incident, Hostragon shall not be obligated to provide the Services to you and the limited warranty of Section 6.2 shall not apply to the Incident.

2.7 Service Levels.

2.7.1 Priority of Support.

Hostragon will use commercially reasonable efforts prioritize its response to Incidents depending upon the level of support applicable to such Incidents in the following order: Telephone Support, Custodian Support, Concierge Support and Complimentary Support.

Notwithstanding the foregoing sentence, Hostragon may elect to prioritize its response to a given Incident depending upon the relative severity of the support issues reported in other Incidents pending in the Hostragon Customer Portal regardless of the level of support applicable to such Incidents.

2.7.2 Escalation of Incidents.

Hostragon maintains internal escalation procedures with respect to Incidents. In the event that a Hostragon representative is unable to find a resolution to the Incident (assuming a resolution is commercially feasible), Hostragon will escalate the Incident in accordance with its internal escalation procedures. Hostragon may change its internal escalation system from time to time within its sole discretion.

2.7.3 Support Levels.

Subject to Section 2.7.1, Hostragon will use commercially reasonable efforts to resolve all Incidents as soon as reasonably possible, but does not make any representations or warranties as to the timeliness of the resolution of any Incident. Hostragon shall resolve all Incidents subject to Section 2.8.

2.7.4 Hostragon Third-Party Subprocessors

Hostragon may use a range of Subprocessors to assist with Technical Support Services including 24x7 phone, chat and email support, response, diagnosis and resolution services, customer outreach, incident tracking and response to customer queries.

We only work with trusted support service providers and have verified that our service providers have the required technical expertise, and that they maintain our security and privacy standards. Subprocessors do not have access to customer billing information but may have access any troubleshooting material (e.g., log files, screenshots) that you share explicitly in the course of a support case.

2.7.5 Server Migrations

Regarding any request for data copy, account copy, entire server migration, or any similar request, the Account Copy function in WHM must work on the originating server and destination server. If an account is too large to copy using the WHM Account Copy function, or if the WHM Account Copy does not work due to an error on the originating server and the originating server is not being supported by us, or if the WHM Account Copy function does not work for any reason deemed to be a developmental issue/bug with the cPanel transfer, we can submit a request to the cPanel support team to fix the transfer function and await their resolution.

If the cPanel support team can not fix the transfer function, we will not be able to do the transfer. Additionally, manually copying accounts via SSH, or scp/rsyncing data to a new server, or resyncing data or accounts after a migration, are not supported.

2.7.6 Response Time and Resolution Time (SLA)

For support tickets, we offer and guarantee an initial response within 6 hours, and subsequent responses and resolutions within 24 hours, per ticket. However, our average response time is within 1 hour, and our average resolution time is within 3 hours. Depending on the complexity of the issue, if a ticket requires more time, we will inform you of this within the time-frame and update you throughout the process.

Tickets are reviewed in the order they are received, and answered consecutively. Response and Resolution time count starts from the moment the ticket is opened in our Client Login area. When a new ticket is opened while another ticket is already opened and unresolved, the Response and Resolution time count for the new ticket starts from the moment that the previous ticket was resolved. Our Response and Resolution time guarantees apply to the first 1 ticket per 24 hours, or the first 7 tickets per 30 days, or the first 14 replies per 30 days, or the first 3 hours of work per 30 days, whichever comes first, and additional tickets are not covered under our Response and Resolution time guarantees.

A "response" means that a technical analyst has read the ticket, assigned it to the most appropriate technician to handle your specific problem, and responded stating that the ticket resolution process has started. A "resolution" means that a technician has resolved the problem in the ticket.

We only guarantee that an initial response will be received within 8 hours, and subsequent responses and resolutions will be received within 24 hours or one business day. In certain instances, if you report a problem that is erratic or requires more time than our response/resolution time to debug, we will inform you of this within our response/resolution time.

2.7.7 Restoration and Migration Requests

For Restoration and Migration requests, the Response and Resolution time guarantee covers our work only, and not the actual time of the data transferring since we have no control over how long it will take your server to transfer data. We will start the restoration or migration request within our Response and Resolution time guarantee. The time it takes for the restoration or migration request to be completed is beyond our control and solely dependent upon the amount of data that has to be copied, number of accounts, network connection speed between servers, server's speed, etc. (For example, if you have a lot of accounts or data to be transferred, even though we will start it within our guaranteed response and resolution time, it can still take several days for your server to complete the data transfer). The status of migrations in progress are checked a minimum of once per day.

Support can only be provided for the IP address registered in your account. If you change your server IP address for any reason (ie, move to a new server, obtain a new server, change the main server IP address, etc), it must be added to your account first by submitting a ticket to the Billing department. Support can not be started nor provided for any reason on the new IP address until the Billing department has added the new IP address to your account.

Support can only be provided on a Linux (RedHat, Amazon Linux, CentOS, CloudLinux) operating system and with cPanel or Plesk, and must be accessible via SSH. All websites needed to complete any task (such as replicating issues, testing functions, submitting reboots for monitoring, etc) must be accessible via plain html, and must not require any addons such as ActiveX, Java, etc. to view the page.

2.8 Resolution of Incidents.

In the event that Hostragon resolves your Incident, or makes a determination that no resolution is commercially feasible, Hostragon will provide you notice through the Hostragon Customer Portal and close the Incident on such system.

Alternatively, Hostragon may determine whether a support issue raised in an Incident constitutes a bug in the Software (“Software Bug”) or a request for a new feature (“Feature Request”).

If Hostragon determines that a support issue raised in an Incident constitutes a Software Bug or a Feature Request, Hostragon will close the Incident and determine whether such Software Bug or Feature Request should be forwarded to Hostragon’s development team for further consideration and possible correction or inclusion into the Software.

Any information, feedback, ideas or suggestions you provide to Hostragon with respect to a Software Bug or Feature Request shall be deemed a Submission. Hostragon shall in its sole discretion determine: (a) whether an Incident has been resolved; (b) whether a resolution is commercially feasible; (c) whether a support issue raised in an Incident constitutes a Software Bug or Feature Request; and (d) whether or not and when to close an Incident. Hostragon will not provide the Services for closed Incidents.

2.9 Provision of Services to Third Party Users.

2.9.1 Third Party User Incidents.

If you are a Hostragon Customer or Hostragon Reseller, you may submit Incidents on behalf of Third Party Users and Hostragon will provide the Services with respect to such Incidents; provided that:

• you must enter into an agreement with each Third Party User concerning Hostragon’s provision of the Services with respect to such user’s Incidents;
• as part of such Third Party Support Agreement each Third Party User must agree to the Flow-Through Provisions set forth in Section 2.9.2 as a condition of Hostragon’s provision of the Services with respect to the Third Party User’s Incident; and
• the Third Party Support Agreement shall not offer or provide services greater in scope and duration than the Services provided by the Partner Agreement as applicable.

Third Party users do not qualify for Custodian Support regardless of the Partners qualifications for it.

2.9.2 Flow-Through Provisions.

Any Third Party Support Agreement must contain:

• The Third Party User’s acknowledgment and agreement that Hostragon owns all right, title and interest in and to the Hostragon IP Rights substantially similar to Section 3.1 (Ownership);
• a notice substantially similar to the disclaimer set forth in Section 6.3 (Disclaimer) that Hostragon disclaims all warranties and representations with respect to the Services;
• a limitation of liability substantially similar to that set forth in Section 7 (Limitation of Liability) for the benefit of Hostragon;
• The Third Party User’s acknowledgment and agreement that Hostragon’s obligation to provide the Services shall automatically expire without notice upon the expiration or termination of this Agreement or the Hostragon EULA for any reason whatsoever;
• The Third Party User’s acknowledgment and agreement that Hostragon may in its sole discretion terminate or suspend provision of the Services to you or any Third Party User in the event of (i) any breach of this Agreement or the Hostragon EULA by you or (ii) any breach by the Third Party User or any provision concerning Hostragon or the Services in any Third Party Support Agreement.

• The Third Party User’s acknowledgment and agreement that Hostragon is a third party beneficiary of the Third Party Support Agreement between you and the Third Party User with the full right to enforce the provisions of the Third Party Support Agreement as they pertain to Hostragon and the Services;
• The Third Party User’s acknowledgment and agreement that concerning your disclosure to Hostragon and Hostragon’s collection of the Support Data, including without limitation any Support Data that may personally identify the Third Party User; and
• The Third Party User’s waiver of any and all claims (whether under law, equity or any other theory of liability) against Hostragon and its affiliates that may arise from a Third Party User’s inability to use the Services in the event (i) of the expiration or termination of this Agreement or the EULA for any reason whatsoever; or (ii) that Hostragon suspends provision of the Services as set forth in this Section 2.9.

Your right to submit Incidents on behalf of Third Party Users and receive the Services with respect to such Incidents is conditioned upon your compliance with the terms of this Section 2.9. Upon request from Hostragon, you shall provide Hostragon with copies of any Third Party Support Agreements. Hostragon shall also have the right (but not the obligation) to notify any Third Party Users that Hostragon will or has terminated or suspended the provision of the Services due to the termination or expiration of this Agreement or a breach of this Agreement.

In the event that Hostragon notifies Third Party Users pursuant to the preceding sentence, Hostragon reserves the right to offer products and services, including without limitation the Software and Services, to any Third Party Users affected by such termination or expiration (or to refer such third parties to other Hostragon licensees or affiliates). Except as set forth in this Section 2.9, you may not submit Incidents to Hostragon on behalf of any third party.

2.10 Support Data.

In order to provide the Services to you, Hostragon may collect information from you including but not limited to:

• IP addresses, usernames and passwords necessary to login to SSH, cPanel, WebHost Manager or Plesk;
• the usernames and passwords necessary to login into any affected accounts including email accounts, Hostragon accounts, MySQL accounts and other accounts; and
• other information that you voluntarily supply or that Hostragon requests in order to resolve your Incident.

Hostragon will use commercially reasonable efforts to preserve the security of the Support Data by using reasonable physical and electronic security measures (except to the extent Hostragon is required or permitted to disclose, access or use such information by Applicable Law), but Hostragon cannot guarantee the security of such data.

To the extent that Applicable Law requires that you obtain any consents, permissions or licenses from third parties (including Third Party Users) or to give any notices or disclaimers to third parties (including Third Party Users) prior your disclosure of Support Data to Hostragon, you agree to comply with such Applicable Laws prior your disclosure of Support Data to Hostragon.

3. Intellectual Property Rights.

3.1 No Contest.

You acknowledge and agree that the Hostragon IP Rights are and shall remain the sole and exclusive property of Hostragon. You agree that you shall never oppose, seek to cancel, or otherwise contest Hostragon’s ownership of the Hostragon IP Rights or act in any manner that would or might conflict with or compromise Hostragon’s ownership of the Hostragon IP Rights, or similarly affect the value of the Hostragon IP Rights. Whenever requested by Hostragon, you shall execute such documents as Hostragon may deem necessary or appropriate to confirm, maintain or perfect Hostragon’s ownership of the Hostragon IP Rights.

In the event Hostragon is unable, after reasonable effort, to secure your signature on any document or documents needed to apply for or to confirm, maintain or perfect Hostragon's ownership of the Hostragon IP Rights for any other reason whatsoever, you hereby irrevocably designate and appoint Hostragon as your duly authorized attorney-in-fact, to act for and on your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect Hostragon's ownership of the Hostragon IP Rights with the same legal force and effect as if executed by you. In the event you become aware that any third party is, or may be, infringing the Hostragon IP Rights, you agree to notify Hostragon of such fact.

3.2 Submissions.

With respect to any feedback, suggestions or ideas (“Submissions”) that you submit to Hostragon concerning the Software, Services, or any of Hostragon’s products or services, you agree that: (a) your Submissions will automatically become the property of Hostragon, without any compensation to you; (b) Hostragon may use or redistribute the Submissions for any purpose and in any way; (c) Hostragon is not obligated to review any Submissions; and (d) Hostragon is not obligated to keep any Submissions confidential.

4. Support Fees.

As a condition of the provision of the Services by Hostragon under this Agreement and when applicable, you shall pay Hostragon the amounts set forth in your Support Pricing Agreement (“Support Fees”) in accordance with the payment terms contained therein. All Support Fees are subject to change at any time.

5. Term and Termination.

5.1 Term

This Agreement shall commence on the Effective Date and shall automatically expire at the end of the Term.

5.2 Termination

Hostragon may terminate this Agreement (a) in the event of your breach of this Agreement (or a Third Party User’s breach of a provision of a Third Party Support Agreement or Third Party Support Agreement relating to the Service, Software or Hostragon) upon 30 days notice to you if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.9 (Provision of Services to Third Party Users); or (c) immediately without notice in the event of your material breach of this Agreement (or a Third Party User’s breach of a material provision of a Third Party Support Agreement or Third Party Support Agreement relating to the Service, Software or Hostragon). You acknowledge and agree that any breach by you or any Third Party User of the following provisions of the Agreement or any related provisions of a Third Party Support Agreement or Third Party Support Agreement shall each constitute a material breach: (i) any conduct inconsistent with the Hostragon IP Rights as set forth in Section 3 (Intellectual Property Rights); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of this Agreement or your rights and obligations with respect to this Agreement in violation of Section 9.8 (Assignment); (iii) any breach of Section 4 (Payment); and (iv) any breach of your representations and warranties under Section 6.1 (Mutual Representations). Additionally, a material breach by you of any agreement or contract between you and Hostragon, including without limitation a breach of Hostragon's Trademark Usage Policy, or the Partner Agreement shall be deemed a material breach of this Agreement and shall give rise to Hostragon’s right to terminate as set forth in this Section 5.2. The foregoing list of material breaches is a nonexclusive list.

5.3 Survival.

Sections 1 (Definitions), 3 (Intellectual Property Rights), 4 (Support Fees), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive termination or expiration of this Agreement for any reason.

6. Representations; Warranties; Disclaimer.

6.1 Mutual Representations.

Each party hereto represents and warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the Services and the performance of its obligations under this Agreement.

6.2 Limited Warranty.

Hostragon will use commercially reasonable efforts to resolve any Incident for which you have purchased Telephone Support. If Hostragon determines, pursuant to Section 2.8, that it is us unable to resolve the Incident in a commercially feasible manner, Hostragon may refund any Support Fees associated solely with the telephone support.

6.3 Disclaimer.

EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SERVICES ARE PROVIDED “AS IS” AND HOSTRAGON HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SERVICES AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. HOSTRAGON DOES NOT WARRANT THAT THE SERVICES ARE OR SHALL BE ERROR-FREE OR WILL BE PROVIDED WITHOUT INTERRUPTION. IF THE SERVICES ARE DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF HOSTRAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH A DEFECT OR DAMAGES.

6.3.1

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HOSTRAGON, ITS AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 6.2.

6.3.2

SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.

7. Limitation of Liability.

7.1 Lost Profits; Consequential Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HOSTRAGON WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF HOSTRAGON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Total Cumulative Liability; Exclusive Remedy.

EXCEPT FOR AMOUNTS OWED BY YOU TO HOSTRAGON UNDER SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HOSTRAGON'S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY HOSTRAGON FOR AN INDIVIDUAL PIECE OF SOFTWARE THAT IS THE SUBJECT OF AN INCIDENT UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY IN SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND HOSTRAGON'S ENTIRE LIABILITY SHALL BE FOR HOSTRAGON TO REFUND THE SUPPORT FEES AS SET FORTH IN THAT SECTION. THE REMEDIES IN THE FOREGOING SENTENCE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES.

8. Indemnification.

You shall indemnify, defend and hold harmless Hostragon and its directors, officers, staff, employees and agents and their respective successors, heirs and assigns and Hostragon affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “Hostragon Parties”) from and against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon the Hostragon Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of your representations, warranties or obligations under this Agreement; (b) in the event that you submit Incidents on behalf of Third Party Users pursuant to Section 2.9 (Provision of Services to Third Party Users), (i) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party Support Agreement relating to Hostragon, the Software or the Services; and (ii) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination or suspension of the Services to such user by Hostragon pursuant to the terms and conditions of this Agreement; provided, however, that in any such case Hostragon or its affiliates, as applicable, (x) provide you with prompt notice of any such claim; (y) permit you to assume and control the defense of such action upon your written notice to Hostragon of your intention to indemnify; and (z) upon your written request, and at no expense to Hostragon or its affiliates, provide to you all available information and assistance reasonably necessary for you to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the Hostragon Parties, without Hostragon’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Hostragon or it affiliates in connection with or arising from any such claim.

9. Miscellaneous.

9.1 Force Majeure.

No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.

9.2 Independent Contractors.

It is the intention of the parties that Hostragon and you are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Hostragon and you.

9.3 Choice of Law; Venue; Jurisdiction.

This Agreement will be governed by and interpreted in accordance with the laws of the State of Georgia without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally settled and exclusively by the state or federal courts located in Atlanta. For purposes of this Agreement, you and Hostragon hereby irrevocably consent to exclusive personal jurisdiction and venue in the federal and state courts in Atlanta.

9.4 Entire Agreement.

This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.

9.5 Basis of Bargain.

Section 6.2 (Limited Warranty), Section 7 (Limitations on Liability; Exclusive Remedies) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between Hostragon and you and shall inure to the benefit of Hostragon. Hostragon would not be able to provide the Software on an economic basis without such limitations.

9.6 Severability.

If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not effect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

9.7 Amendment or Modification.

This Agreement may not be amended, modified or supplemented by the parties in any manner, except by an instrument in writing signed by Hostragon and you.

9.8 Assignment.

This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: by Hostragon in its sole discretion. In addition, Hostragon may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that Hostragon will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.

9.9 Waiver.

Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.

9.10 Remedies Cumulative.

Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.

No Third Party Beneficiaries.

This Agreement is made for the benefit of the parties only, and this Agreement is not for the benefit of, and was not created for the benefit of, any third parties including, without limitation, any Third Party Users.

9.12 Notices

All notices or questions relating to this Agreement shall be directed to: Hostragon Legal Dept. Any notice required to be given under this Agreement shall be deemed given by Hostragon when sent to you by email or mail to the contact information supplied by you to Hostragon in the Support Pricing Agreement or the Partner NOC Agreement. You may update such information from time to time upon written notice to Hostragon at the address in this Section 9.12. Any failure by you to provide Hostragon with updated contact information will not invalidate the effectiveness of any notice sent by Hostragon to the contact information previously supplied by you.

9.13 Export Controls.

The parties agree to comply fully with all applicable Laws of the United States and Japan, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of the Software in connection with this Agreement. You specifically agree that you shall not, directly or indirectly, supply or permit any other party to supply the Software to an individual or organization in a country or region against which the U.S. government imposes an embargo (presently, Crimea, Cuba, Iran, North Korea and Syria) or an individual or organization on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons or other individual who or organization that is the subject of a U.S. legal measure that provides for sanctions blocking of property or that otherwise generally forbids U.S. citizens to transact with the individual or organization.

9.14 Time-Limited Claims.

Regardless of any Applicable Law to the contrary, you agree that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one month after such claim or cause of action arose or be forever barred.