MASTER LICENSE AGREEMENT
THIS MASTER LICENSE AGREEMENT (the “Agreement”) is made as of _________ __, 202_ (the “Effective Date”) by and between Drifty Co. (d/b/a “Ionic”), a Delaware corporation with its principal offices at 121 S. Pinckney St. Suite 300 Madison, WI 53703 (“Drifty”), and ________________, a [____] [corporation], with a principal place of business located at _________________, _______________, __ _____(“Client”). The two aforementioned parties shall be referred to throughout this Agreement individually as a “Party” or, collectively, as the “Parties.”
WHEREAS, Drifty offers proprietary software products, that include certain tools that facilitate the development and design of hybrid mobile applications using certain web technologies, component parts and ancillary applications and analytics, (the “Drifty Software”);
WHEREAS, Drifty desires to make such Drifty Software and Support Services, as well as other potential services available to Client on the terms and conditions described below;
WHEREAS, Client wishes to have the option to purchase, during the term of this Agreement, (i) licenses to certain Drifty Software and (ii) provision of (a) the Support Services and/or (b) the Ionic Advisory by Drifty; and
WHEREAS, the initial such purchase is provided for in the initial order form hereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants and conditions herein contained, the Parties hereto agree as follows.
- Definitions. For purposes of this Agreement, these defined terms shall have the following meanings: (i) “Authorized Apps” means the number of mobile applications (“apps”) developed by Client using any Drifty Software. (ii) “Business-to-Customer App” means any Authorized App for the sole benefit of, and use by, a third-party customer of Client. (iii) “Business-to-Enterprise App” means any Authorized App for the sole benefit of, and use by, an employee or contractor of Client. (iv) "Documentation" means Drifty's user manuals, handbooks, and installation guides relating to the Drifty Software provided by Drifty to Client either electronically or in hard copy form relating to the Drifty Software, in each case, that Drifty makes available to its clients, generally. (v) “Internal Business Purposes” means use of the Drifty Software by (i) the employees or contractors of the Client in order to develop mobile applications and (ii) by Supported Users of an Authorized App. (vi) “Ionic Advisory” means Drifty’s (i) advice, best practices, integration, architecture review, code analysis and/or (ii) plug-in development services that Drifty offers and Client purchases. (vii) “Supported User(s)” means each employee or contractor of Client who Client permits to access or use the Drifty Software and/or Documentation pursuant to Client's license hereunder. (viii) “Third-Party Products" means any third-party products provided with or incorporated into the Drifty Software. (ix) "Updates" means a release of the Drifty Software that Drifty may make available generally to clients without additional Subscription Fees during the Term, that may be comprised of bug fixes, patches, error corrections or other enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Drifty Software, but does not constitute a New Version; "New Version" means any release of the Drifty Software that Drifty may, from time to time, release and market generally as a distinct licensed offering, and which Drifty makes generally available to clients at an additional cost.
Orders and Services Packages. Description of Drifty Software.
- 2.1.1 Orders. In order to purchase license(s) to the Drifty Software and/or procure the provision by Drifty of the Ionic Advisory and/or Support Services, Client shall place orders with Drifty (each an “Order”). The form of Order to be used is attached hereto as Appendix B, and the initial such Order is attached hereto as Appendix B-1. No Order will be binding unless accepted in writing or by e-mail by Drifty. Any pre-printed terms and conditions that Client may provide in connection with an Order shall be deemed null and void.
- 2.1.2 Drifty Software. In consideration of Client’s payment of the fees for the Drifty Software subscription plan that Client has ordered in the applicable Order (the “Package”), on the date that Drifty has accepted such Order (the “Order Effective Date”), Drifty shall be deemed to have granted to Client a non-exclusive, non-transferable, non-assignable, limited right, during the applicable period for which Client has licensed the Package (the “Subscription Term”), to use, via its Supported Users, the Drifty Software during the Subscription Term solely: (i) for Client's Internal Business Purposes; (ii) within the specific scope and limitations, and for the specific configuration(s), in each case, as specified in the applicable Order for the Package; and (iii) for not more than the maximum number of Authorized Apps set forth in the relevant Order.
- 2.1.3 Documentation. In addition to the rights granted in Section 2.1.2 above, on the Order Effective Date, Drifty shall be deemed to have granted to Client the right to use, and make a reasonable number of copies of, the Documentation solely for its Internal Business Purposes in connection with Client's use of the Drifty Software. Any such copy of the Documentation: (x) remains Drifty's exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original version of the Documentation licensed hereunder.
2.2. License Restrictions and Limitations. Except for the licenses granted in Section 2.1.2 above, Client (and each Supported User) may not use, copy, modify, rent, loan, lease, sublicense, create derivative works from, or distribute, the Drifty Software for any purposes or make the Drifty Software available to any person or entity that is not a Supported User. Drifty grants no rights other than those explicitly granted herein, and Client shall not exceed the scope of its license as set forth herein and in the applicable Order. At any time, Client may submit an Order in order to increase the maximum number of Authorized App or to order an additional Package, which may include a license of Drifty Software products other than those that have been previously ordered. The Fees for such additional Authorized App or Drifty Software shall be set forth in the applicable Order, and shall include any incremental Support Services and/or Ionic Advisory fees attributable to such additional Authorized App Such additional Authorized App licenses or additional Package(s) will be deemed to commence on Drifty’s written acceptance of the applicable Order. Client shall not at any time, directly or indirectly, (i) copy, modify, or create derivative works of the Drifty Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Drifty Software or the Documentation; (iii) decompile, disassemble, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Drifty Software, in whole or in part or reverse engineer the Drifty Software or any elements of the Drifty Software; (iv) remove any proprietary notices from the Drifty Software or the Documentation; or (v) use the Drifty Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.3 Reservation of Rights. As between Drifty and Client, Drifty (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Drifty Software and Updates, including without limitation all of the software comprising any portion thereof and all related services, specifications, Documentation, technical information, corrections, modifications, additions, improvements and enhancements to, and all intellectual property rights in, the foregoing. As between Drifty and Client, any applications developed by Client using the Drifty Software shall be and remain the sole and exclusive property of Client. Drifty reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Drifty Software, Updates or the Documentation. All techniques, know-how, software, algorithms and methods or rights thereto owned by Drifty as of the Effective Date, developed during the course of the design, development, and provision of the Drifty Software, or which are employed by Drifty in connection with the Drifty Software, shall be and remain the property of Drifty.
2.4 Delivery. Drifty shall deliver the Drifty Software electronically, or by other means, in Drifty's sole discretion, to Client within three (3) business days following the applicable Order Effective Date.
2.5 Support Services, Training, and Technical Support.
- 2.5.1 Drifty will provide to each Supported User maintenance and support for the Drifty Software in accordance with Appendix A and the applicable Order for the Subscription Term (the “Support Services”).
- 2.5.2 Further, in the event that Drifty will be providing any on-boarding or training, such services will be set forth in the applicable accepted Order.
2.6 Ionic Advisory. In the event that it is include in the applicable accepted Order, Drifty shall provide to Client Ionic Advisory.
3.1 General. Client is responsible and liable for all uses of the Drifty Software and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by, or in violation of, this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Supported Users, including any act or omission by a Supported User that would constitute a breach of this Agreement if taken by Client. Client shall make all Supported Users aware of the provisions of this Agreement as applicable to such Supported User's use of the Drifty Software, and shall cause Supported Users to comply with such provisions.
- (a) Third-Party Products. Drifty may distribute certain Third-Party Products with the Drifty Software. For purposes of this Agreement, such Third-Party Products are subject to their own license terms. If Client does not agree to abide by the applicable terms for such Third-Party Product, then Client should not install or use such Third-Party Products. The Third-Party Products also include certain open source software. Client understands and acknowledges that such open source software is not licensed to Client pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license. Client shall have only such rights and/or licenses, if any, to use the open source software as set forth in the licenses thereto.
Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Drifty by mail, email, telephone, or otherwise, suggesting or recommending changes to the Drifty Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Drifty is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Drifty on Client's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Drifty is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Drifty is not required to use any Feedback.
Payments. 5.1 Fees. During the Term (as defined in Section 6.1 below), Client will pay Drifty fees as set forth in each accepted Order for the applicable Package (the “Fees”). Unless otherwise expressly provided in an accepted Order, Client shall pay Drifty the Fees in U.S. funds annually in advance via wire transfer or other mutually agreed upon method. If Client fails to pay all undisputed (in good faith) Fees by such time period as is provided in the applicable Order, Drifty may, in addition to its other rights and remedies (including pursuant to Section 6.2 below), impose a late fee equal to the lesser of 1.5% per month or the amount permitted under applicable law, suspend all Support Services, or both, in its discretion.
5.2 Taxes. Client shall pay or reimburse Drifty for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed specifically by reason of the performance by Drifty under this Agreement; excluding, however, taxes measured by Drifty’s profits, its overall sales, employment and similar taxes incurred in connection with persons performing services for Drifty, and property or other taxes measured in whole or in part by the value of Drifty’s assets.
5.3 Auditing Rights and Required Records. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of three (3) years after the termination of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Drifty may, at its own expense, on reasonable prior notice, periodically inspect and audit Client's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Client has underpaid Drifty with respect to any amounts due and payable during the Term, Client shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5.1. Client shall pay for the costs of the audit if the audit determines that Client's underpayment equals or exceeds ten percent (10%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of three (3) years after the termination of this Agreement.
Term and Termination.
6.1 Term. The initial term of this Agreement shall be for a period of one (1) year following the Effective Date (the “Initial Term”). Thereafter, this Agreement shall automatically renew for consecutive one (1) year periods unless terminated by written notice by a Party at least thirty (30) days before the expiration of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”). Except for a termination by Drifty based on a breach hereof by Client, any then-effective Order shall remain in effect for the balance of its then-current Subscription Term.
6.2 Suspension for Cause. In addition to the terms set forth in Section 6.1, Drifty may suspend Client’s access to any services included in the applicable Package upon written notice in the event that Client exceeds the license limitations described in Section 2.1 or any accepted Order, or if Client fails to pay any amount when due. Further, Client shall reimburse Drifty for all reasonable costs incurred by Drifty in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and if such failure continues for ten (10) days following written notice thereof, Drifty may prohibit access to the Drifty Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other person by reason of such prohibition of access to the Drifty Software.
6.3 Termination for Cause. Except as otherwise provided for herein, either Party may terminate this Agreement (a) upon the material breach by the other Party of this Agreement, provided that the breaching Party shall have thirty (30) days to cure such breach following receipt of written notice unless the breach, by its nature, takes longer than thirty (30) days to cure, in which case the breaching Party shall not be in breach so long as the Party begins to cure the breach within thirty (30) days and diligently completes such cure; (b) upon the cessation of business by either Party or the filing of a petition in bankruptcy (voluntary or involuntary) with respect to a Party, which in the case of an involuntary petition the Party shall have sixty (60) days in which to vacate or stay such petition; or (c) upon the failure by Client to pay any amount due hereunder, provided that Client shall have ten (10) days to cure such monetary breach following receipt of written notice. Notwithstanding the foregoing, in the event that Drifty reasonably determines that a breach of this Agreement is not curable by Client within the applicable cure period set forth herein, Drifty may terminate this Agreement immediately upon written notice to Client and Client shall pay all outstanding fees upon the effective date of termination.
6.4 Effect of Termination. Upon any termination of this Agreement, all rights and obligations of the Parties under this Agreement will be extinguished, except that (a) the rights and obligations under Sections 1, 2.2, 2.3, 3.1, 4, 5, 6, 9, 10, and 11, will survive the termination of the Agreement, and (b) Client shall pay all unpaid and outstanding fees through the effective date of termination of the Agreement. Notwithstanding anything contained herein to the contrary, except with respect to a termination of this Agreement by either Party pursuant to Section 6.3, any Subscription Term provided in an accepted Order shall survive the termination of this Agreement.
7.1 Mutual Warranties. Each Party represents and warrants to the other Party that (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a Party or by which such Party is otherwise bound; and (iii) 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 terms.
7.2 Drifty Software Limited Warranty. Drifty represents and warrants that (i) the Drifty Software will be provided as stated in this Agreement, will be free from material defects, and will operate in substantial conformance with the Documentation, except for de minimis non-conformities that do not interfere with the day-to-day operation of the Drifty Software; and (ii) Drifty will use commercially reasonable efforts to make the Drifty Software available in accordance with the terms of this Agreement, and (iii) Ionic Advisory and the Support Services will be performed in a professional and workmanlike manner consistent with industry standards. THE FOREGOING WARRANTIES DO NOT APPLY, AND DRIFTY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. The foregoing warranties do not apply and become null and void if Client breaches any material provision of this Agreement, or if Client , any Supported User, or any other person provided access to the Drifty Software by Client or any Supported User, whether or not in violation of this Agreement: (i) installs or uses the Drifty Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Drifty in writing; (ii) modifies or damages the Drifty Software; or (iii) misuses the Drifty Software, including any use of the Drifty Software other than as specified in the Documentation or expressly authorized by Drifty in writing.
7.3 Breach of Warranty. If there is a breach of a warranty in Section 7.2(i) , Drifty shall (i) correct the defect or nonconformance in the Drifty Software so that it operates in substantial conformance with the Documentation; or (ii) replace any defective or non-conforming component of the Drifty Software such that the Drifty Software performs in substantial conformance with the Documentation; or (iii) in the event that Drifty reasonably determines that neither of the foregoing is practicable, terminate the Agreement with respect to the defective or non-conforming component of the Drifty Software and refund all amounts Client has pre-paid to Drifty for the defective or non-conforming component of the Drifty Software. If Drifty repairs or replaces the Drifty Software, the warranty will continue to run from the Order Effective Date and not from Client's receipt of the repair or replacement. The foregoing are Client’s sole remedies and Drifty’s exclusive obligations in connection any defect in, or non-conformance of, the Drifty Software during the Term of this Agreement.
8.1 Drifty agrees to indemnify and hold harmless Client (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “Client Indemnified Parties”) against any finally awarded cost, claim, liability or expense any of the Client Indemnified Parties incur arising out a third party claim that the use of the Drifty Software infringes a copyright, trade secret or United States patent of any third party. The applicable Client Indemnified Party shall provide Drifty written notice of any claim for which it seeks indemnification under this Section; provided, that: (i) Client notifies the Drifty promptly in writing of any such claim after Client becomes aware of it (provided failure of Client to notify Drifty of any such claim shall not relieve Drifty of its indemnification obligations except to the extent such failure adversely impacts the ability of Drifty to successfully defend against such claim); (ii) Client cooperates with Drifty in all reasonable respects in connection with the investigation and defense of any such claim; (iii) Drifty shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise (provided, however, any settlement requiring any payment by Client or that would otherwise have a material adverse impact upon the business of Client will be subject to the prior written approval of Client). Notwithstanding anything herein to the contrary, Drifty shall have no obligation or liability to Client under this Section 8.1 if any otherwise covered claim is based upon: (1) use of the Drifty Software in a manner other than that for which it was furnished provided by Drifty; (2) use of the Drifty Software if it has been modified by or for Client in such a way as to cause it to become infringing (3) failure of Client to implement any Update delivered by Drifty to Client that would have avoided such claim; or (4) use of the Drifty Software by Client in conjunction with systems, products or components not furnished by Drifty. The provisions of this Section 8.1 set forth Drifty's exclusive liability, and Client's exclusive remedy, for infringement or other violation of the intellectual property rights of any third party. If the Drifty Software becomes, or likely to become, the subject of any claim, suit, or proceeding arising from or alleging infringement of any third-party intellectual property right, then Drifty will, at its expense, (i) procure for Client the right to continue to use the Drifty Software, (ii) replace or modify the Drifty Software so that it is not infringing, or (iii) if Drifty reasonably determines that neither (i) or (ii) above is reasonably feasible, terminate Client’s license to the Drifty Software and refund an amortized portion of the fees paid for the Drifty Software.
8.2 Client agrees to indemnify, defend and hold harmless Drifty (its affiliates, subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives) (together, the “Drifty Indemnified Parties”) from and against any cost, claim, liability or expense any of the Drifty Indemnified Parties may incur arising out of Client’s violation of any third party rights or the misappropriation of any Drifty intellectual property; provided, that: (i) the applicable Drifty Indemnified Party notifies Client in writing of any such claim promptly after the applicable Drifty Indemnified Party becomes aware of it (provided failure of the applicable Drifty Indemnified Party to notify Client of any such claim shall not relieve Client of its indemnification obligations except to the extent such failure adversely impacts the ability of Client to successfully defend against such claim); (ii) the applicable Drifty Indemnified Party cooperates with Client in all reasonable respects in connection with the investigation and defense of any such claim; (iii) Client shall have sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise (provided, however, any settlement requiring any payment by any Drifty Indemnified Party or that would otherwise have a material adverse impact upon the business of any Drifty Indemnified Party will be subject to the prior written approval of Drifty).
9.1 Each Party acknowledges and agrees that it (and its subcontractor(s), if any), in performing its obligations under this Agreement, shall have access to or be directly or indirectly exposed to each other’s Confidential Information. Each Party shall hold confidential all Confidential Information and shall not disclose such Confidential Information to third parties nor use the other Party’s Confidential Information for any purpose other than as necessary to perform under this Agreement. Each Party shall use reasonable measures and reasonable efforts to provide protection for each other’s Confidential Information, including measures at least as strict as those each Party uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors to sign a non-disclosure agreement before obtaining access to the other Party’s Confidential Information and such other measures as the Party takes to protect its Confidential Information or trade secrets in the course of its business. “Confidential Information” means information in the possession, or under the control of, a Party relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that Party in oral, graphic, written, electronic or machine readable form, source code and information pertaining to usage and design of the Drifty Software, and the terms and conditions of this Agreement.
9.2 The foregoing restrictions on disclosure shall not apply to Confidential Information which is (a) already known by the recipient, (b) becomes, through no act or fault of the recipient, publicly known, (c) received by recipient from a third party without a restriction on disclosure or use, (d) independently developed by recipient without reference to the other Party’s Confidential Information or (e) information the disclosure of which is required by a court order or a requirement of a governmental or regulatory authority.
9.3 Because of the unique nature of each Party’s proprietary materials, each Party understands and agrees that the other Party will suffer irreparable injury in the event that a Party fails to comply with any of the terms of this Section 9, and that monetary damages may be inadequate to compensate for such breach. Accordingly, each Party agrees that the other Party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief, without posting a bond, to enforce the terms of this Agreement against any actual or threatened breach of this Section 9.
Disclaimers of Warranty; Limitation of Liability.
10.1 Except as otherwise expressly provided in this Agreement, the Drifty Software is made available by Drifty to Client “AS IS” and “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” Except as otherwise expressly provided (in each case), Drifty makes no representation or warranty of any kind, express or implied, as to the condition, character, nature, capability, performance, security, availability, suitability, title, source or any other characteristic of the Drifty Software or any portion thereof. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, DRIFTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DRIFTY SOLUTION OR THIS AGREEMENT, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; OR (C) ANY WARRANTY THAT THE DRIFTY SOLUTION WILL BE SECURE OR ERROR-FREE, WILL MEET CLIENT’S REQUIREMENTS, WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITY, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY OR SECURE, OR OPERATE WITHOUT ERROR.
10.2 Limitations of Liability
- 10.2.1 EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION OR (B) CLIENT’S MISAPPROPRIATION OF DRIFTY’S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DRIFTY SOLUTION, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 10.2.2 EXCEPT WITH RESPECT TO DAMAGES OR LIABILITY ARISING FROM (A) A PARTY’S BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION, (B) CLIENT’S MISAPPROPRIATION OF DRIFTY’S INTELLECTUAL PROPERTY AND (C) EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT FOR ALL CLAIMS ACCRUING DURING THE TERM OF THIS AGREEMENT EXCEED THE GREATER OF $5,000 OR THE AMOUNTS PAID OR PAYABLE BY CLIENT UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
11.1 Notices. Unless otherwise specifically provided in this Agreement, every notice or other communications required or permitted under this Agreement shall be valid only if in writing and shall be delivered either by personal delivery; by nationally recognized overnight courier service; or by certified or registered mail, return receipt requested, addressed to the names and addresses of each Party set forth on the corresponding registration materials.
11.2 Force Majeure. Except for any payment obligations, neither Party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, explosion, war, strike, embargo, government requirement, pandemic, civil or military authority, act of God or other causes beyond its control and without the fault or negligence of the delayed or non-performing Party or its subcontractors.
11.3 General Provisions. This Agreement shall be governed by and interpreted in accordance with the internal law of the State of Delaware without regard to its conflict of laws provisions. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” This Agreement, including any Order and any other policies referenced herein, represents the entire agreement between the Parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. The terms of this Agreement shall be deemed to be incorporated into and govern each accepted Order; and, in the event of any conflict or inconsistency between the terms of this Agreement and any Order, the terms hereof shall govern unless such Order expressly amends the terms of this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature. This Agreement may only be modified, amended or supplemented in a written document signed by authorized signatories of both Parties subsequent to the date of execution of this Agreement. If any litigation is brought to enforce, or arises out of, the Agreement or any term, clause, or provision hereof, the prevailing Party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof.
IN WITNESS WHEREOF, the Parties hereto, by their duly authorized representatives, have executed and delivered this Agreement as of the Effective Date.
DRIFTY CO. Client: ____
SUPPORT SERVICES TERMS/POLICY
This Schedule describes the Support Services relating to the Drifty Software that Drifty will provide or cause to be provided to Client during the applicable Subscription Term. The services described in this Schedule do not expand or change the warranty provisions set forth in the Agreement. Drifty shall provide the following services during the term of the Agreement:
GENERAL OBLIGATIONS. 1.1 Operations. During the applicable Subscription Term, in consideration of the fees paid by Client under the Agreement, Drifty shall be responsible, at its own expense, for operating and maintaining the Drifty Software for Client to access as permitted under the Agreement.
1.2 Program Errors. Drifty shall identify and promptly inform Client of any Program Errors (as defined below) of which Drifty becomes aware and shall consult with Client regarding necessary corrections and or modification. For the purposes of this Agreement, a "Program Error" shall mean a material and reproducible deviation in the Drifty Software from its specifications; provided, however, that any such deviation which is due to any of the following shall not be considered a "Program Error": (i) any problem caused by content, programming, or infrastructure provided or used by Client that is defective; (ii) any problem caused by a Force Majeure event (as defined in Section 11.2 of the Agreement); or (iii) any problem caused by the performance or non-performance of the Internet (as used herein, “Internet” shall not mean or include hardware, software or systems under the control (by contract or otherwise) of Drifty or its subcontractors). Drifty reserves the right to provide any and all services set forth in this Schedule by outsourcing such services to independent third parties selected by Drifty in its sole and absolute discretion. Drifty acknowledges and agrees that performance or non-performance by subcontractors used by Drifty to provide or support services hereunder shall in all respects be deemed to be performance or non-performance, as the case may be, of Drifty hereunder.
TECHNICAL SUPPORT AND OBLIGATIONS. During the applicable Subscription Term, Drifty shall provide or cause to be provided the following maintenance and technical support to Client:
2.1 Technical Support. Client shall have access to Technical Support provided by Drifty as follows. Drifty will provide telephone support and/or remote access support to designated Client contacts to assist with Program Errors using the following Drifty contact information:
Email Address: email@example.com
Hours of Support: 8-5 CST
Response Time: Drifty shall use commercially reasonable efforts to respond to all Support tickets no later than the response time provided for the applicable Package ordered by Client. Drifty will assist Client in utilizing the Drifty Software and in identifying and providing fixes and workarounds. a. Problem Reporting: Client may submit to Drifty requests identifying potential problems in the Drifty Software. Requests should be in writing and directed to Drifty by the electronic means specified in the relevant accepted Order. Drifty retains the right to determine the final disposition of all requests, and will inform Client of the disposition of each request. If Drifty decides in its sole judgment to act upon a request, it may do so by providing an Update when and if available. c. Response Times. Drifty shall respond to Program Errors within the time period provided for the applicable Package ordered by Client. d. Correction of Errors: Drifty shall use reasonable efforts to provide an avoidance procedure for, and a correction of, each defect in the Drifty Software that causes the Drifty Software not to conform in all material respects with the Documentation.
2.2 Maintenance Windows. If there is maintenance that needs to be performed, for which a service interruption is expected, Drifty will use reasonable efforts to alert Client at least one day in advance. The notice will be sent by email. If the maintenance needs to be extended, Client will be notified by email.
Scheduled Maintenance Windows
Day Time Tuesday/Thursday 9pm-11pm EST Sunday 9am-5pm EST
Emergency Maintenance Windows; as determined by Drifty.
2.3 Exclusions. Drifty shall have no support obligations with respect to any hardware or software product other than the Drifty Software ("Nonqualified Products"). If Drifty provides Technical Support for a problem caused by a Nonqualified Product, or if Drifty’s service efforts are increased as a result of a Nonqualified Product, and upon notification to Client, Drifty may charge time and materials for such extra services at its then current rates. If, in Drifty’s reasonable opinion, performance of Technical Support is or will be made more difficult or impaired because of Nonqualified Products, Drifty shall so notify Client, and Client shall immediately remove the Nonqualified Product at its own risk and expense. Client shall remain solely responsible for the compatibility and functioning of nonqualified products with the Drifty Software.
2.4 Limitations. Drifty will use its reasonable efforts to make the Drifty Software perform substantially in accordance with the specifications in the Documentation. However, Client acknowledges that inevitably some errors may exist in the Drifty Software, and the presence of such errors shall not be a breach of this Agreement.
2.5 Client Responsibilities. In connection with providing the maintenance and Technical Support described in this Schedule, Client shall have the following responsibilities: (1) maintain the Nonqualified Products and associated peripheral equipment if any, in good working order in accordance with the manufacturers’ specifications, and insure that any problems reported to Drifty are not due to hardware or operating system malfunction; (2) supply Drifty with access to and use of all information and facilities determined to be necessary by Drifty to render the Technical Support described in this Agreement; (3) perform any tests or procedures recommended by Drifty for the purpose of identifying and/or resolving any problems; (4) maintain a procedure external to the Drifty Software for reconstruction of lost or altered files, data, or programs; (5) at all times follow routine operator procedures as specified in the Documentation; and (6) ensure that the Drifty Software is isolated from any process links or anything else that could cause harm before requesting or receiving remote support assistance. Client is solely responsible for providing all internal technical support to the Concurrent Users.
Drifty shall provide Support pursuant to Sections 1 and 2 above for the then-current New Version of the Drifty Software and the immediately preceding such New Version (the “First-Back Version); provided, that, the First-Back Version is v. 4.0 or a later-released version.