1. Description of the Service

The service is a cloud management and optimization platform intended to provide cloud-cost visibility, smart insights, best-practice recommendations, and automatic cost optimization (the “Service”). The Service is made available to you on a software-as-a-service (SaaS) basis through a web portal on our Site and includes: (i) the platform that you access via the Site; (ii) the products, services, and features made available or provided to you by us in connection with the Service; and (iii) the content, text, documents, descriptions, products, graphics, statistics, photos, interactive features, and the trademarks, service marks and logos contained in or made available through the Service or provided to you by us in connection with the Service (the “Content”).

2. Subscription to the Service.

Subject to your compliance with these Terms and the Order Form (if applicable), Zesty hereby grants you, and you accept, a personal, non-exclusive, non-assignable, non-sublicensable, non-transferable, and fully revocable right to access, view, and use the Service solely for your internal business purposes (“Subscription”). All of our rights not expressly granted in these Terms are hereby reserved.

3. Restrictions on Use.

You shall not, itself, or through any parent, subsidiary, affiliate, or other third party, do any of the following (in whole or in part): (i) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (ii) violate or abuse password protections governing access to the Service; (iii) allow any third party to use the Service; (iv) give, sell, rent, lease, license, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute any portion of the Service or use it in any service bureau arrangement; (v) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, make derivative works of, or derive, or attempt to derive, the source code of, the Service or any components thereof; (vi) use the Service to design and/or develop a competing service or product; (vii) use any robot, spider, scraper, or any other automated means to access the Service; (viii) take any action that imposes or may impose, as determined in Zesty’s sole discretion, an unreasonable or disproportionately large load on Zesty’s infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Service (including the enjoyment of use of the Service by other authorised users); (x) remove, deface, obscure, or alter the Zesty’s or any third party’s IPR (as defined below) affixed to or provided as part of the Service, or use or display logos of the Service differing from those of Zesty; (xi) use the Zesty’s name, logo or trademarks without prior written consent from Zesty, (xii) send, upload, distribute, transmit or disseminate via (or offer to do the same with respect to) the Service any unlawful content, nor any viruses, worms, defects, Trojan horses, corrupted files, hoaxes or other destructive or malicious material; and/or (xiv) use the Service for any unlawful purpose (or one that could associate Zesty, in its reasonable judgement, with any improper or inappropriate purpose) or in breach of these Terms.

4. Proprietary Rights.

You acknowledge and agree that Zesty (and/or its licensors) own all patents, rights to inventions, copyright and related rights, moral rights, trademarks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), the Content, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (“IPR”) in the Service and any rights therein not explicitly granted to you hereunder are reserved to and shall remain solely and exclusively proprietary to Zesty (or its licensors). Without limitation, “Zesty”, the Zesty Logo, and other marks are of Zesty or our affiliates. Except as expressly stated herein, these Terms does not grant you any rights to, under or in, any of the Service or Zesty’s IPR. If Zesty receives any feedback (e.g., questions, comments, suggestions, or the like) regarding the Service (collectively “Feedback”), all rights including IPR in such Feedback shall belong exclusively to Zesty.

5. Confidential Information.

Each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including (without limitation), IPR in the Service, the Content, all Order Forms, confidential trade secrets, and other information related to the products, software, technology, data, know-how, or business of the other party, whether written or oral, and any such other information that, regardless of the manner in which it is furnished and given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information”). Each party shall take reasonable measures, at least as protective as those taken to protect its own Confidential Information, but in no event less than reasonable care, to protect the other party’s Confidential Information from disclosure to a third party. The receiving party may disclose Confidential Information of the disclosing party if it is required to be disclosed by applicable law, regulation, or court or administrative order; provided, however, that (where permitted) such party gives prompt notice to the disclosing party of such requirement and discloses Confidential Information only to the extent required thereby.

6. Account.

In order to use the Service, you have to create an account on our Site (“Account”). You acknowledge and agree (i) to provide accurate and complete Account and login information; (ii) to remain solely responsible and liable for the activity that occurs in connection with your Account; (iii) to keep your Account password secure; and (iv) to notify us immediately of any breach of security or unauthorized use of your Account.

6.1. Free Customer.By creating an account you become a free customer (“Free Customer”).

6.2. Paying Customer.Any Free Customer must enter into an order form with us (“Order Form”) and pay Zesty all fees as set forth in the Order Form (“Fees”) to become a paying customer (“Paying Customer”). Please contact us at sales@Zesty.co to request an Order Form.

7. Paying Customer Additional Terms.

The following additional terms also apply to a Paying Customer:

7.1. You shall pay Zesty the Fees. The payments made to Zesty shall be made on a recurring basis, and shall be changed in accordance with your pricing package. All billing cycles are renewed automatically for the same billing cycle. Fees for the current cycle (monthly or annual) are based on the prevailing rate on the first date of such cycle according to the service selected. All Fees are non-cancellable, non-refundable and, unless otherwise stated in the Order Form, are exclusive of all taxes, levies, or duties, which are your responsibility. If you are located in a jurisdiction that requires you to deduct or withhold taxes or other amounts from any amounts due to us, you must notify us in writing. In such a case, we reserve the right to assess the withheld amount or to increase the gross amount of the applicable payment so that, after the deduction or withholding for taxes, the net amount paid to us will not be less than the amount we would have received without the required deduction or withholding. The payment methods and the required payment schedule are set forth in the Order Form.

7.2. You hereby grant Zesty and Zesty hereby accepts the right to analyze, predict, purchase modify, and if applicable sell commitments (reserved instances) and perform additional cost optimization actions on your behalf.

7.3. Company shall provide its standard support and maintenance services to Customers subject to the and management SLA policy attached to these Terms as Exhibit A.

8. Data.

8.1. Customer Data. While using the Service, you may choose to input, import, upload, post, or otherwise provide to us certain data (“Customer Data”). You retain full ownership of such Customer Data. You hereby grant Zesty a non-exclusive, worldwide, royalty-free license to use, process, transfer, display, copy, and store such Customer Data in order to provide the Service. This includes, without limitation, the provision of such data to Zesty, the transfer of such data by Zesty to its affiliates and subcontractors, including transfers outside of the European Economic Area. You are solely responsible for the display of the privacy notices related to the personal data that you provide Zesty to the Service. You represent and warrant that (i) you have the right to provide Zesty the license granted herein, and (ii) the Customer Data you provide shall not infringe or violate any laws or rights of any third party.

8.2. Our Privacy Policy. You acknowledge and agree that your use of the Service and our use of any Customer Data and/or Accounts are governed by Zesty’s Privacy Policy available on our website.

8.3. Service Data. The Service makes available certain data and/or insights to you (“Service Data”). You acknowledge and understand that the Service Data and other information presented on the Service are collected and compiled automatically and originate from third-party suppliers that you give us access to, such as your cloud providers. The accuracy and validity of Service Data and other information presented on the Service depend on the data provided by your third-party suppliers to whom you give us access.

8.4. To the extent that you need a data processing agreement, you shall execute Zesty’s data processing agreement (“DPA”) available upon request or at https://zesty.co/wp-content/uploads/2020/12/Zesty_DPA.pdf and return it signed to Zesty promptly. In the event you fail to comply with any data protection or privacy law or regulation and/or any provision of the DPA, and/or fail to return an executed version of the DPA to Zesty, then: (a) to the maximum extent permitted by law, you shall be fully responsible and liable for any such breach, violation, infringement and/or processing of personal data without a DPA by Zesty and Zesty’s affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents); (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim related to processing of personal data without a DPA, you shall defend, hold harmless and indemnify Zesty and Zesty’s affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees.

9. Communications.

You acknowledge and agree that we may send you communications and other notices about the Service.

10. Customer Reference.

You acknowledge and accept that Zesty has the right to use your name and logo to identify you as a customer of Zesty or user of the Service, on the Site, marketing materials, or otherwise by announcements on social media.

11. Warranty Disclaimer.

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. Zesty HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Zesty DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. Zesty DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY CONTENT, INFORMATION, CUSTOMER DATA, SERVICE DATA OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. YOUR USE OF AND RELIANCE UPON THE SERVICE AND SERVICE DATA IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK AND Zesty SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING. YOU AGREE THAT Zesty WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR: (a) OVER PURCHASES CAUSED BY ANY ARCHITECTURAL CHANGES OR OTHER SIMILAR REASONS (b) ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS (c) ANY INFORMATION PROVIDED BY YOUR THIRD PARTY SUPPLIERS SUCH AS CLOUD PROVIDERS. Applicable law may not allow the exclusion of certain warranties, so to that extent, such exclusions may not apply.

12. Limitation of Liability.

TO THE FULLEST EXTENT PERMISSIBLE BY LAW, Zesty SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE) ARISING OUT OF THESE TERMS AND/OR ORDER FORMS IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF Zesty HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF Zesty FOR ANY DAMAGES UNDER THESE TERMS AND/OR ORDER FORMS OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY YOU (IF ANY) TO Zesty FOR THE SERVICE WITHIN THE SIX (6) MONTHS, IF ANY, IMMEDIATELY PRECEDING THE DATE OF BRINGING A CLAIM.

13. Indemnification.

You agree to defend, indemnify, and hold harmless Zesty and its affiliates and our and their respective officers, directors, agents, consultants, service provider, subcontractors, and employees from and against any third-party claims, damages, liabilities, costs, and expenses (including but not limited to attorney’s fees and expenses) arising from (i) your use of the Service; (ii) your breach of these Terms; (iii) violation of applicable laws or regulations; and/or (iv) infringement or misappropriation of third party rights.

14. Suspension.

If we believe, in our sole discretion, that you are using the Service in a manner that may cause harm to us or any third party, or in breach of these Terms or applicable data protection laws or regulations, then we may, without derogating from our right to terminate your Account as specified in these Terms, suspend or terminate your Account or your access to and use of the Service, or parts thereof.

15. Term and Termination.

15.1. Free Customer. As a Free Customer, your subscription to the Service continues until your Account is terminated in accordance with these Terms. You may terminate your Account at any time and for any reason by revoking Zesty’s IAM role permission from the cloud provider. We may terminate these terms at any time and for any reason by canceling your Account.

15.2. Paying Customer. As a Paying Customer, the initial term of your subscription to the Service is set forth in the applicable Order Form (the “Initial Term”). Unless the Order Form says otherwise, at the expiration of the Initial Term, your subscription will automatically renew, at the then-current list price, for additional periods of the same duration (each a “Renewal Term”) unless either party provides the other party with written notice of non-renewal at least thirty (30) calendar days prior to the expiration of the then-current term. You should send such a non-renewal request to info@Zesty.co. We may terminate your Account if you materially breach any of these Terms or an Order Form, and such breach is not cured within thirty (30) calendar days of the written notice notifying you of the breach. We may suspend your Account at any time without liability if we believe, at our sole discretion, that Zesty could be put in breach, violation or infringement of applicable laws or regulations, or third party rights or Zesty’s rights could become compromised.

16. Effect of Termination.

Upon expiration or termination for any reason: (i) all licenses and Subscriptions granted under these Terms shall immediately terminate and you shall immediately cease all use of the Service and the Content; (ii) each party shall promptly destroy and make no further use of any Confidential Information and other items (and all copies of them) belonging to the other party and certify compliance with the destruction obligation in writing; (iii) you shall pay all outstanding fees and charges (whether or not due at the date of termination). Clauses 1, 3, 4, 5 (with respect to the obligation to destroy), 7 (in respect of outstanding Fees owed to Zesty), 11, 12, 13, 16 and 17 shall survive termination of these Terms.

17. General.

Assignment. These Terms and any rights or obligations hereunder may not be transferred, delegated, or assigned by either party without the prior written consent of the other party (provided that such consent shall not be required upon a merger, acquisition, or for assignment to a purchaser of all or substantially all of the assets or equity securities of either party), and any such improper transfer, delegation or assignment shall be null and void. Governing Law and Jurisdiction. These Terms shall be governed by the laws of the State of Israel, without regard to its conflict of laws provisions. The United Nations Convention for the International Sale of Goods shall not apply. Any dispute arising under or relating to these Terms will be resolved in the applicable courts located in Tel Aviv, Israel, and the parties hereby expressly consent to jurisdiction therein. Notwithstanding the foregoing, each party reserves the right to seek injunctive relief in any court of competent jurisdiction. Force Majeure. Neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, provided the affected party gives prompt notice to the other party and makes reasonable efforts to resume performance as soon as possible. Miscellaneous. These Terms and any Order Form: (i) comprises the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior understandings, oral and written, between the parties relating to the subject matter hereof; (ii) in the event of any conflict or inconsistency between these Terms and the terms of an Order Form, the terms of the applicable Order Form shall prevail over the conflicting and/or inconsistent Terms; (iii) may only be modified by a writing that is mutually signed by both parties; (iv) if any part of these Terms is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of these Terms shall not be affected and such provision shall be modified to give it an effect most closely approximating the original intended economic and legal effect; (v) no failure or delay in exercising any right hereunder by either party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise; (vi) these Terms does not create any third party beneficiaries; and (vii) no failure or delay in exercising any right hereunder by either party shall operate as a waiver thereof, nor will any partial exercise of any right hereunder preclude further exercise.

Exhibit A

SLA terms

During the Term of terms, Zesty will provide access to its SaaS product on a 24x7x365 basis at a 99.99% availability ratio.

The following definitions will apply to this SLA coverage:

“Managed RI” means the RI that was purchased by Zesty and wasn’t modified, converted, exchanged or sold by the Customer.

“RI Utilization” means the RI that was applied to a running instance under an account or sub-account in the Customer’s organization.

“Non-Utilization compensation” means the monetary credits awarded to the Customer by Zesty as a result of RI non-utilization (to be applied for future use). These credits will be deducted from the Customer’s next billing cycle/invoice.

“Non-Utilization Eligibility Credits” To benefit from the non-utilization eligibility credits, the Customer must notify Zesty at least 30 days prior to reducing over 30% of the machines from a single family type within the same region where there are “Managed RIs” and for all RIs not utilized over 30 days that are marked as “managed” and are applicable to be sold.

“Maximum Service Credits” The aggregate maximum Non-Utilization Eligibility Credits to be issued by Zesty to the Customer for any and all Non-Utilization Eligibility compensations that occur in a single calendar month shall not exceed 100% of the amount due by Customer for the Services provided to it during the applicable month. THE CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT ITS RIGHT TO RECEIVE SERVICE CREDITS AS SPECIFIED ABOVE CONSTITUTES ITS SOLE AND EXCLUSIVE REMEDY FOR ANY DOWNTIME EVENTS.

Customer Support The Customer may contact Customer Support via email (as needed) in accordance with Zesty’s policy, which may be amended from time to time.

Other SLA Exclusions:THIS SLA DOES NOT APPLY TO ANY DOWNTIME EVENTS THAT: (I) ARE EXPLICITLY EXCLUDED UNDER THIS SLA; OR (II) ARE CAUSED BY FACTORS BEYOND Zesty’S REASONABLE CONTROL; OR (III) RESULTED FROM CUSTOMER’S SOFTWARE, AS WELL AS ANY EVENTS CAUSED BY THE CUSTOMER’S OWN MANAGEMENT OR MISUSE OF THE SERVICES AND PRODUCTS; OR (IV) RESULTED FROM ABUSES OR OTHER BEHAVIORS ON BEHALF OF THE CUSTOMER OR UNRELATED THIRD PARTIES THAT VIOLATE THE AGREEMENT; (V) RESULTED FROM DOWNTIME OF THE CLOUD SERVICE PROVIDER.