MASTER LICENSE AND SERVICES AGREEMENT
This Master License and Services Agreement (this “Agreement”) is entered into as of the date of download of the Drifty Software (“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 you on behalf of “Client” (each, a “Party”, and together, the “Parties”). This Agreement governs the purchase of Drifty Software and/or Services, and by accepting the Order/SOW, clicking on the appropriate button, or by downloading, installing, accessing and using the Drifty Software, you agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of Client, you represent that you have the authority to bind Client. Do not download, install, access or use any of the Drifty Software if you do not agree to the terms of this Agreement or if you are not authorized to accept the terms of this Agreement on behalf of Client. If Client already has an executed license agreement in effect with Drifty, then that agreement shall prevail over this Agreement, and this Agreement shall have no force or effect.
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”) which also includes any Drifty Support Services and Updates provided by Drifty in accordance to with the terms of this Agreement
WHEREAS, Drifty offers consulting, training, development, implementation or configuration services and/or advice to be provided by Drifty to Client on a time and materials or fixed price basis, and/or plug in development services, which may also be known as Ionic Advisory to Client (the “Services”), as purchased in an Order (as defined in Section 2.1.1 below) and as detailed in the applicable Statement of Work. Services do not include the provision of the Support Services and Updates included in a Subscription Term.
WHEREAS, Drifty desires to make such Drifty Software, Support Services and Updates, and 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 Updates and/or (b) the Services 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 agree as follows.
1. Definitions. For purposes of this Agreement, these defined terms shall have the following meanings:
(a) “Affiliate” means an entity that controls, is controlled by or shares common control with Drifty or Client, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock, by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
(b) “Authorized Apps” means the number of mobile applications (“apps”) developed by Client using any Drifty Software.
(c)“Client Content” means software (including machine images), online services, features, technology, data, text, audio, video, images or other content supplied by Client or by third-parties on behalf of Client in connection with an Application.
(d)“Deliverables” means all goods, records, reports, documents, papers, other materials and deliverables (whether in documentary, electronic or other form) produced by, or on behalf of, Drifty for Client as part of the Professional Services pursuant to the execution of an Order provided they are identified as such in the applicable Statement of Work.
(e) "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.
(f)“Personal Data” means, any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, a location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person, which may be supplied to and/or processed by Drifty pursuant to or in connection with this Agreement
(g) “Statement of Work” means the document that defines the delivery of Services to Client, which may contain project specific activities, Deliverables and timelines. For the avoidance of doubt, an Order may also be used in place of a Statement of Work for the delivery of Services.
(h) “Support Services” means technical support and troubleshooting relating to the Drifty Software as detailed on Appendix A.
(i) “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.
(j) “Third-Party Products" means any third-party products provided with or incorporated into the Drifty Software.
(k) "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.
2. Orders and Services Packages. Description of Drifty Software.
2.1
2.1.1 Orders. In order to purchase license(s) to the Drifty Software and/or procure the provision by Drifty of the Services and/or Support Services, Client shall place orders with Drifty (each an “Order”). The Order shall be deemed to include attachments and amendments to such documents, that are executed or accepted by Client from time to time. The terms of this Agreement shall be deemed incorporated by reference into each Order. No Order will be binding unless accepted in writing or by e-mail by Drifty, and duly signed and executed by Drifty and Client.
2.1.1(a) Order Mechanism. Each Package (as defined in Section 2.1.2 below) will be obtained solely by execution or acceptance of an Order. Pursuant to execution of an Order and subject to the terms and conditions of this Agreement and Client’s payment of all applicable Fees (as defined in Section 5.1 below), Drifty will provide the Package to Client specified in the Order during the Subscription Term (as defined in Section 2.1.2 below). Client may order multiple Package(s) by executing additional Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise in the applicable Order. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will prevail only with respect to that Order and only if the Order is agreed to by each party. Orders may be entered under this Agreement by and between (a) Drifty or an Affiliate of Drifty; and (b) Client or an Affiliate of Client. For the avoidance of doubt, in the event Client accepts an Order by submitting a purchase order, then regardless of whether Drifty acknowledges, accepts or performs under such purchase order, Drifty expressly rejects any terms on such purchase order that are additional to, or inconsistent, with the terms of this Agreement or the applicable Order.
2.1.2 Drifty Software. In consideration of Client’s payment of the fees for the Drifty Software subscription plan and/ or the Services 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:
;
(a) 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
(b) for not more than the maximum number of Authorized Apps set forth in the relevant Order.
2.1.2(a) Subscription Term. The subscription ordered by Client shall commence on the start date specified in the applicable Order and shall, unless earlier terminated pursuant to Section 6.3, continue in effect until the end date specified in the applicable Order (the “Initial Subscription Term”). For Initial Subscription Terms which are committed for multiple years, each individual committed year may be listed as a separate line item in the applicable Order for administrative convenience only. Except as otherwise specified in the applicable Order, the Subscription Term shall automatically renew for additional periods equal to the initial Subscription Term (each, a “Renewal Subscription Term”) at the renewal Fees set forth in the applicable Order, or if no renewal Fees have been agreed in the applicable Order, those set forth in the renewal notice sent to Client at least sixty (60) days prior to the end of the then-current Subscription Term, unless either Party gives the other Party notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.
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 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(a) License Restrictions and Limitations. Except for the licenses granted in Section 2.1.2 above, Client (and each Supported User) may not and will not allow any third party to (a) use, copy, modify, rent, loan, lease, sublicense, create derivative works from, or distribute, the Drifty Software for any purposes or make the Drifty Software and Documentation available to any person or entity that is not a Supported User, (b) provide, disclose, divulge or make available to, or permit use of the Package in whole or in part by, any third party other than those that support Client with developing Authorized Apps, (c) install or use the Drifty Software in a manner that circumvents or interferes with the operation of the technological measures that control access to the Drifty Software, (d) use the Drifty Software to provide third party training, (e) disclose results of any license benchmark tests to any third party without Drifty’s prior written consent, (f) use the Drifty Software in any way that violates applicable law or the terms and conditions of this Agreement, (g) 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, or (h) remove any proprietary notices from the Drifty Software or the Documentation.
2.2(b) In addition, unless Client and Drifty have agreed to additional terms to this Agreement in an Order or addendum to this Agreement, Client may not (and will not allow any third party to), with respect to any Authorized Apps deployed under this Subscription Term: (a) sell, rent, lease, license, sublicense, distribute, offer as a paid or free subscription, or include in a service bureau or outsourcing offering, such Authorized Apps, or otherwise make available the Drifty Software or Documentation; or (b) develop, test, host, or run and operate such Authorized Apps on behalf of third-parties to this Agreement.
2.2(c) 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 Apps 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 Apps or Drifty Software shall be set forth in the applicable Order, and shall include any incremental Support Services and/or Professional Services fees attributable to such additional Authorized Apps. The Subscription Term for any such additional Authorized App licenses or additional Package(s) will be deemed to commence on Drifty’s written acceptance of the applicable Order.
2.2(d) Drifty has the right in its sole discretion to remove or block any text, images, artwork, technology and other content, data, information, materials and other items provided or made available to Drifty, or stored on or uploaded onto any Drifty provided platform by Client (“Client Materials”) at any time where (a) such Client Materials violate applicable laws, regulations, orders, or is in violation of Drifty’s applicable policies and procedures, including without limitation any acceptable use policies; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Drifty provided platform, Drifty, or any third party; or (c) in order to respond to law enforcement or any other governmental authority.
2.2 (e) Client acknowledges that use of Drifty Sofware requires that it register with Drifty. Client shall cause all employees or subcontractors of Client, and Supported Users authorized to access the Drifty Software to register to have access to the Drifty Software (“Registered Users”). Client shall cause each Registered User to (a) provide true, accurate, current and complete information prompted by the registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Drifty has the right to suspend or terminate any Registered User account and refuse any and all current or future use of the Drifty Software (or any portion thereof) to anyone that provides false or inaccurate data. Each Registered User is entirely responsible for the security and confidentiality of its own password and account. Client shall be entirely responsible for any and all activities that occur under a Registered User’s account. The Client shall immediately notify Drifty of any unauthorized use of a Registered User’s account or any other breach of security of which Client becomes aware.
2.3 Manner of Use Subject to the terms of this Agreement and the applicable Order, Client agrees not to use or permit use of the Drifty Software to display, store, process or transmit any Client Content that may: (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any material that is false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters. If Drifty discovers that Client is in violation of any of the foregoing restrictions, Drifty will notify Client, and Client will promptly take appropriate action to resolve such violation. If Client does not take the required action in accordance with the above, Drifty reserves the right, but has no obligation, to take remedial action if Client violates the foregoing restrictions. Drifty shall have no liability to Client in the event that Drifty takes such action.
2.4 Client Content and Authorized Applications. As necessary for Drifty (a) to provide Client with the Support Services and Updates; and (b) to operate, manage and improve the Drifty Software, Client grants to Drifty the right and a license to host, copy, transmit and display Client Content and Authorized Apps in accordance with this Agreement and limited to such purposes only. The license may also be exercised on behalf of Drifty by third parties acting on Drifty’s behalf (e.g., technology partners, service providers and independent contractors).
2.5 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.
2.6 Delivery. For all Drifty Software to be deployed on Client’s servers, 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.
2.7 Support Services, Training, and Onboarding Services.
2.7.1 Drifty will provide Support Services to each Supported User for the Drifty Software in accordance with Appendix A during the Subscription Term (the “Support Services”).
2.7.2 Further, in the event that Drifty will be providing any Services which constitute on-boarding or training, such services will be set forth in the applicable Order or Statement of Work.
2.8 Services
2.8.1 Scope. Upon request and execution of an Order, Drifty shall provide Services to Client as detailed in the applicable Statement of Work. Unless otherwise stated in the applicable Statement of Work, all Services will be provided remotely, during normal business hours, under a single time zone selected by Client before the commencement of the Services.
2.8.2 Expenses. If a Statement of Work states that Services will be provided on-site, then in addition to any and all Fees in the applicable Order, Client will reimburse Drifty for all reasonable costs and expenses related to the provision of the Services, including without limitation travel, lodging, meal and out-of-pocket expenses incurred by Drifty in connection with the performance of the Services (“Expenses”). Expenses shall be invoiced by Drifty as stated in the Order and paid by Customer in accordance with the terms of the Agreement.
2.8.3 Changes. Any changes or additions to the Services, including scope, Fees and/or Expenses, will only be valid if agreed in writing and executed by both Parties.
2.8.4 Cooperation. Customer will cooperate reasonably and in good faith with Drifty in the execution of the Services by, without limitation: (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Drifty to perform its obligations under each Order; (b) timely delivering any materials and other obligations specifically required under each Order; (c) timely responding to Drifty’s reasonable inquiries related to the Services; (d) actively participating in relevant scheduled meetings; and (e) providing information, data and feedback that is complete, accurate and timely in all material respects.
2.8.5 Acceptance Criteria. If a Deliverable is specified in an applicable Statement of Work, that Deliverable will be deemed accepted on delivery, unless acceptance criteria and an acceptance testing process are defined in the applicable Statement of Work.
- Provision of Services to Third Parties. Drifty is in the business of providing products and consulting services to third parties which are or may be substantially similar to the Deliverables being developed for Client. Drifty is free to use all of Drifty’s ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by Drifty prior to this Agreement, or acquired, developed, or refined by Drifty during the execution of the same (“Residual Knowledge”). It is not the intent of this Agreement to prevent Drifty from pursuing its stated business by independently creating such original but similar works for the benefit of third parties provided that Drifty does not use or disclose Client’s Confidential Information, Client’s Content or Personal Data. Such retention of Residual Knowledge shall be unaided and unintentional.
3. Client Responsibilities
3.1 General. Client is responsible for all uses of the Authorized Apps and Drifty Software in accordance to the 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.
3.2 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.
3.3 Data Backup
Drifty will make commercially reasonable efforts to back up any data derived or created from using the Drifty Software, including Client Materials. Notwithstanding the foregoing, Client is responsible for saving all data, prototypes, work in progress, and apps to its own storage. Drifty disclaims any and all responsibility for any loss of data, prototypes, work in progress, or apps from the use of the Drifty Software. Client acknowledges that data conversion, processing and manipulation are subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. To the extent within its control, Client is responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, and adopting procedures to ensure the accuracy of input data; examining and confirming results prior to use; and adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. Client is also responsible for complying with all local, state, and federal laws pertaining to the upload, use and disclosure of any data or Client Materials. In the event of termination or expiration of this Agreement or disconnection of the use of Drifty Software, Drifty may delete or store, in its discretion, any files, programs, data or messages associated with Client’s account without any futher liability to Client.
4. 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.
5. 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 (the “Fees”). Unless otherwise expressly provided in an accepted Order, Client shall pay Drifty the Fees in U.S. dollars annually in advance via wire transfer, credit card (for supported transactions) or other mutually agreed upon method. In the event Client has a reasonable, good faith basis for disputing the Fees due on the basis of Drifty’s failure to perform its obligations under this Agreement, Client must notify Drifty of any such disputed Fees on or before the applicable invoice due date and may only withhold payment of that portion of the Fees for which it has a reasonable, good faith basis for dispute. 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, and suspend access to any or all services as per Section 6.2.
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 Drifty’s income tax(es).
5.3 License Verification and Required Records. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Subscription Term of the applicable Order with respect to matters necessary for accurately determining amounts due hereunder. Drifty may, at its own expense, on reasonable prior notice, periodically inspect Client's records for verifying licensing rights under this Agreement, provided that if such inspection 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 such inspection if Client's underpayment equals or exceeds ten percent (10%) for any quarter. Such license verification rights of Drifty will extend throughout the Subscription Term of the applicable Order.
6. Term and Termination.
6.1 Term. Unless earlier terminated pursuant to Sections 6.3 (“Termination for Cause”), this Agreement commences on the Effective Date and continues in force until all Orders executed in accordance with this Agreement have expired or been terminated.
6.2 Suspension for Cause. In addition to the terms set forth in Section 5.1, 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.
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.
6.4.1 Access. Upon termination or expiration, all Packages shall be automatically canceled, and Client shall no longer have access to the Drifty Software or to Authorized Apps.
6.4.2 Damages. Neither Party is liable to the other Party for any damages incurred by the other Party or any third parties as a result of termination in conformity with this Section 6.
6.4.3 Other Remedies. Termination or expiration is not an exclusive remedy, and all other remedies will be available whether or not termination occurs.
7. Warranties; Remedies.
7.1 Mutual Warranties.Each Party represents and warrants to the other Party that (a) such Party has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (b) 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 (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 terms.
7.2 Drifty Software Limited Warranty.
7.2.1 Drifty represents and warrants that:
(a) 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;
(b) Drifty will use commercially reasonable efforts to make the Drifty Software available in accordance with the terms of this Agreement, and
(c) Drifty represents that Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. In the event of a breach of the foregoing warranty, Drifty shall, as its sole obligation and entire liability and Client’s exclusive remedy, at Drifty’s sole option and expense, re-perform the applicable Services in a manner that is compliant with such warranty, or, in the event Drifty is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable Order. Upon such termination, Drifty shall refund Client all Fees paid for the non-compliant Services. Claims under the foregoing warranty must be submitted by Client in writing within thirty (30) days of the performance of such Services.
7.3 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:
(a) 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;
(b) modifies or damages the Drifty Software; or
(c) 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.
7.4 Breach of Warranty. If there is a breach of a warranty in Section 7.2 Drifty shall (a) correct the defect or nonconformance in the Drifty Software so that it operates in substantial conformance with the Documentation; or (b) replace any defective or non-conforming component of the Drifty Software such that the Drifty Software performs in substantial conformance with the Documentation; or (c) 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. Indemnification.
8.1 DURING THE SUBSCRIPTION TERM, DRIFTY WILL DEFEND, OR AT ITS OPTION SETTLE, AT ITS OWN EXPENSE ANY THIRD-PARTY ACTION AGAINST CLIENT, AND PAY ALL DAMAGES (AWARDED AGAINST CLIENT, OR THAT ARE AGREED TO IN A SETTLEMENT), TO THE EXTENT THE THIRD-PARTY ACTION IS BASED UPON A CLAIM THAT THE DRIFTY SOFTWARE OR DELIVERABLES INFRINGE ANY VALID AND ENFORCEABLE INTELLECTUAL PROPERTY RIGHTS OF SUCH THIRD PARTY (AN “INFRINGEMENT CLAIM”). DRIFTY WILL PAY THOSE COSTS AND DAMAGES FINALLY AWARDED AGAINST CLIENT IN ANY SUCH THIRD-PARTY ACTION THAT ARE SPECIFICALLY ATTRIBUTABLE TO AN INFRINGEMENT CLAIM OR THOSE COSTS AND DAMAGES AGREED TO IN A MONETARY SETTLEMENT OF AN INFRINGEMENT CLAIM. NOTWITHSTANDING THE FOREGOING, DRIFTY WILL HAVE NO OBLIGATION UNDER THIS SECTION 8.1 OR OTHERWISE WITH RESPECT TO ANY INFRINGEMENT CLAIM BASED UPON (A) Any AUTHORIZED APP (B) ANY DELIVERABLE, TO THE EXTENT BASED ON COMPLIANCE WITH CLIENT’S INSTRUCTIONS OR TECHNICAL SPECIFICATIONS, (C) ANY UNAUTHORIZED USE, REPRODUCTION, OR DISTRIBUTION OF THE DRIFTY SOFTWARE OR DELIVERABLES BY CLIENT OR ANY OF ITS SUB-DISTRIBUTORS OR END USERS, (D) ANY USE OF THE DRIFTY SOFTWARE OR DELIVERABLE IN COMBINATION WITH OTHER PRODUCTS, EQUIPMENT, SOFTWARE, OR DATA NOT SUPPLIED BY DRIFTY, (E) ANY USE FOR A PURPOSE OR IN A MANNER FOR WHICH THE DRIFTY SOFTWARE OR DELIVERABLES WERE NOT DESIGNED, (F) ANY USE, REPRODUCTION, OR DISTRIBUTION OF ANY RELEASE OF THE DRIFTY SOFTWARE OTHER THAN THE MOST CURRENT RELEASE MADE AVAILABLE TO CLIENT, OR (G) ANY MODIFICATION OF THE DRIFTY SOFTWARE OR DELIVERABLES BY ANY PERSON OTHER THAN DRIFTY OR ITS AUTHORIZED AGENTS OR CONTRACTORS. IF THE DRIFTY SOFTWARE OR ANY OF THE DELIVERABLES BECOMES, OR IN DRIFTY'S OPINION IS LIKELY TO BECOME, THE SUBJECT OF A CLAIM COVERED BY THIS SECTION 8.1, DRIFTY MAY, AT ITS OPTION AND EXPENSE, EITHER (A) PROCURE FOR CLIENT THE RIGHT TO CONTINUE EXERCISING THE RIGHTS LICENSED TO CLIENT IN THIS AGREEMENT, (B) REPLACE OR MODIFY THE DRIFTY SOFTWARE OR DELIVERABLES SO THAT IT BECOMES NON-INFRINGING AND REMAINS FUNCTIONALLY EQUIVALENT, OR (C) TERMINATE THE SUBSCRIPTION TERM BY WRITTEN NOTICE TO CLIENT AND REFUND TO CLIENT ANY PREPAID PAYMENTS COVERING THE REMAINING SUBSCRIPTION TERM. SECTION 8.1 STATES DRIFTY’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES IN RESPECT TO ANY ACTUAL OR ALLEGED CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.
8.2 CLIENT WILL DEFEND, OR AT ITS OPTION SETTLE, AT ITS OWN EXPENSE ANY THIRD-PARTY ACTION AGAINST DRIFTY, AND PAY ALL AWARDED AGAINST DRIFTY, OR THAT ARE AGREED TO IN A SETTLEMENT, TO THE EXTENT THAT THE THIRD-PARTY ACTION ALLEGES THAT CLIENT CONTENT IN THE AUTHORIZED APPS (A) INFRINGE ANY VALID AND ENFORCEABLE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, (B) VIOLATE DATA PRIVACY LAWS; AND (C)ANY OTHER RIGHTS OF A THIRD PARTY.
8.3 THE FOREGOING OBLIGATIONS ARE CONDITIONED ON THE INDEMNIFIED PARTY (A) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH THIRD-PARTY ACTION, (B) GIVING THE INDEMNIFYING PARTY SOLE CONTROL OF THE DEFENSE THEREOF, AND ANY RELATED SETTLEMENT NEGOTIATIONS (PROVIDED, HOWEVER, ANY SETTLEMENT THAT WOULD OTHERWISE HAVE A MATERIAL ADVERSE IMPACT UPON THE BUSINESS OF THE INDEMNIFIED PARTY WILL BE SUBJECT TO THE PRIOR WRITTEN APPROVAL OF THE INDEMNIFIED PARTY), AND (C) AT THE INDEMNIFYING PARTY’S REASONABLE REQUEST AND EXPENSE, ASSISTING IN SUCH DEFENSE THE INDEMNIFIED PARTY’S COUNSEL WILL HAVE THE RIGHT TO PARTICIPATE IN THE DEFENSE OF THE CLAIM, BEYOND ASSISTANCE REQUESTED BY THE INDEMNIFYING PARTY, AT THE INDEMNIFIED PARTY’S EXPENSE.
9. Confidential Information.
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.
10. 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.” Drifty does not warrant that the Drifty Software, Support Services, or Deliverables will be uninterrupted, error-free, or completely secure from malicious attacks by third-parties. Client acknowledges that there are risks inherent in internet connectivity that could result in the loss of Client’s privacy, confidential information and/or Client Content. 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. CLIENT SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL CLIENT CONTENT AND AUTHORIZED APPS.
10.2 Limitations of Liability
- MUTUAL EXCLUSION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL OR MARKET CAPITALIZATION, OR COST OF PROCUREMENT OF REPLACEMENT GOODS OR SERVICES) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.2.2 DRIFTY EXCLUSION OF LIABILITY. DRIFTY WILL NOT BE LIABLE FOR: (a) CLIENT’S INABILITY TO USE THE DRIFTY SOFTWARE OR DELIVERABLES AS A RESULT OF ANY VALID TERMINATION OR SUSPENSION OF THE SUBSCRIPTION TERM PURSUANT TO THE TERMS OF THIS AGREEMENT; OR (b) ANY UNAUTHORIZED ACCESS TO, DAMAGE OR ALTERATION TO, DELETION OR DESTRUCTION OF, OR FAILURE TO STORE OR BACKUP, CLIENT CONTENT DUE TO CLIENT’S NEGLIGENT ACTS OR OMISSIONS.
10.2.3 TOTAL AGGREGATE LIABILITY.
10.2.3.1 GENERAL. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT. EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY THE PARTY’S NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNTS DUE OR PAID TO DRIFTY UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
10.2.3.2 SERVICES. DRIFTY’S TOTAL AGGREGATE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF SERVICES PROVIDED UNDER THIS AGREEMENT, SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY DRIFTY’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNTS PAID TO DRIFTY FOR THE SERVICES RENDERED UNDER THE APPLICABLE ORDER.
THE PROVISIONS OF THIS SECTION 10.2.3 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CLIENT AND DRIFTY. DRIFTY’S FEES FOR THE PACKAGE AND/OR PROFESSIONAL SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
10.2.4 EXCLUSIONS. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 10.2.3 WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR DIRECT DAMAGES DUE AS A RESULT OF EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
10.2.5 NOT FIT FOR PURPOSE. UNLESS EXPRESSLY PROVIDED, THE DRIFTY SOFTWARE AND DELIVERABLES ARE NOT DESIGNED FOR THE TRANSFER OR PROCESSING OF CREDIT CARD OR OTHER SENSITIVE FINANCIAL INFORMATION AND IS NOT PCI (PAYMENT CARD INDUSTRY) COMPLIANT. IT IS ALSO NOT DESIGNED FOR THE TRANSFER OR PROCESSING OF ANY PATIENT OR OTHER SENSITIVE HEALTH CARE INFORMATION OR TO BE IN COMPLIANCE WITH ANY OTHER SPECIFIC REGULATORY REQUIREMENTS. ALL PRODUCTS AND SERVICES PROVIDED BY DRIFTY UNDER THIS AGREEMENT SHOULD NOT BE DEEMED OR UNDERSTOOD AS A RECOMMENDATION, ENDORSEMENT, GUARANTEE OR WARRANTY OF THE PROFESSIONAL SERVICES OF ANY PROVIDERS WHO PROVIDE FINANCIAL SERVICES, HEALTH CARE SERVICES, OR OTHER REGULATED SERVICES. CLIENT WILL INDEMNIFY DRIFTY, ITS AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES, AGAINST AND HOLD THEM HARMLESS FROM ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, COSTS AND EXPENSES ARISING FROM THE TRANSFER OR PROCESSING OF CREDIT CARD OR OTHER FINANCIAL, OR OTHER SENSITIVE INFORMATION THROUGH THE USE OF DRIFTY SOFTWARE, DELIVERABLES AND PROFESSIONAL SERVICES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, RELATING TO OR ARISING OUT OF ANY CLAIM BY ANY THIRD PARTY THAT THE SERVICE OR ITS USE HAS RESULTED IN PERSONAL INJURY, ECONOMIC LOSS OR ANY OTHER DAMAGES TO ANY PERSON OR PROPERTY.
11. Miscellaneous.
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.
- Compliance with Laws. The Parties agrees that, in connection with the performance of this Agreement, each Party shall comply with all laws applicable to such Party’s respective performance under this Agreement, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws.
11.4 Export Laws. Client agrees that Client’s use of the Drifty Software (including related Documentation) and Professional Services, will comply with all applicable export control and trade sanctions laws, rules and regulations, including the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, "Export Laws"). Client represents and warrants that Client is not (a) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea region, Donetsk People’s Republic region, and Luhansk People’s Republic region of Ukraine) (collectively, the “Sanctioned Countries”); or (b) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). Client further certifies that Client will not, directly or indirectly, export, re-export, transfer or otherwise use the Drifty Software (nor any direct product thereof) and/or the Professional Services in violation of the Export Laws, or with any purpose prohibited by the same Export Laws, in any Sanctioned Country, to any person or entity on a Restricted Party List, or for any nuclear, chemical, missile or biological weapons related end uses. Client acknowledges that the Drifty Software and/or Professional Services, or any feature or part thereof, may not be available for use in all jurisdictions and that Client is responsible for complying with applicable Export Laws wherever Client uses the Drifty Software and/or Professional Services. Notwithstanding Section 6.2 above, Drifty shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
11.5 Usage Data. The Parties agree that Drifty and its Affiliates may collect and use technical data related to the use of the Drifty Software, its performance, configuration and environment (“Usage Data”) for statistical purposes, to improve the Drifty Software, and for compliance verification. The confidentiality obligation set forth in Section 9 (“Confidential Information”) shall apply to the collection and use of such data.
11.6 Relationship of Parties. The Parties are independent contractors, not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party, by contract or otherwise, to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
11.7 Assignment. This Agreement is not assignable or transferable by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld except that either party may freely assign or transfer this Agreement to any company that is an Affiliate or as a result of a merger or a sale of all or a substantial part of its assets or share capital. If the permitted assignment or transfer by a Party is to a direct competitor of the other Party, such other Party may terminate this Agreement upon written notice, subject to, as applicable, payment by Client of all Fees due up through the effective date of such termination or refund by Drifty of any portion of prepaid Fees which relate to the period after the effective date of such termination. In the case of any permitted assignment or transfer of or under this Agreement, the assigning or transferring Party will provide notice to the other Party promptly following such assignment or transfer, this Agreement and any existing Order(s) shall be binding upon, and inure to the benefit of, the assignees, transferees, successors, executors, heirs, representatives, and administrators of the Parties to this Agreement. Any permitted assignment or transfer by Client of any Order which contains a Subscription that is unlimited in volume in any respect will be limited to the Authorized Applications which were deployed by Client in production at the time of the assignment or transfer and the volume of use of those Authorized Applications in effect at that time. Any attempt by either Party to assign or transfer this Agreement in violation of this Section 11.8 shall be void.
11.8 No Solicitation. During the term of this Agreement and for a period of six (6) months thereafter, neither Party shall, either directly or indirectly, solicit the employment of or hire any of the employees of the other Party, excluding the hiring of personnel in response to a general solicitation of employment directed to the public. This promise shall be construed as an agreement independent of, yet ancillary to, any other provision of this Agreement.
11.9 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement (including all Orders and addenda, if applicable), or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of provision relates to essential aspects of the Agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect
11.10 Waivers of Rights. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the Party claimed to have waived. No provision of any purchase order or other form employed or provided by Client will supersede the terms and conditions of this Agreement and/or Order(s) executed with Client, and any such document relating to this Agreement and/or Order(s) shall be for administrative purposes only and shall have no legal effect.
11.11 Attribution. Client agrees that Drifty may use Client’s name and logo and indicate that Client is a customer of Drifty on its website, in any public filings and through its marketing materials, including but not limited to press releases, case studies, white papers and webinars. Any such attribution will be consistent with Client’s style guidelines or requirements as communicated to Drifty from time to time.
11.12 Counterparts and Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement, notwithstanding the fact that all Parties are not signatories to the original or the same counterpart. The Parties agree that this Agreement may be delivered by electronic signature (e.g., DocuSign, in portable data format – PDF – or in any other digital mean of identifying that party’s identity and approval of the counterpart) by any or both Parties, in which case all Parties agree to rely on the receipt of such document so executed and delivered by electronic means as if the original had been received. The Parties warrant and represent that such electronic signature is valid and legally binding in jurisdictions they may respectively be subject to, and they waive any potential right or claim against the validity of this Agreement on the basis of its electronic signature.
11.13 General Provisions. This Agreement shall be governed by and interpreted in accordance with the laws 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. In the case of conflicts, discrepancies, errors or omissions among the Agreement, any, addenda, and any Order, the documents and amendments to them shall take precedence and govern in the following order: (a) Order; (b) Agreement; and (c) addenda (if any). . 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. 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.
APPENDIX A
SUPPORT SERVICES TERMS/POLICY
This Appendix 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 Support Services described in this Appendix do not expand or change the warranty provisions set forth in the Agreement. Drifty shall provide the following Support Services during the term of the Agreement:
1. GENERAL OBLIGATIONS.
1.1 Operations. During the applicable Subscription Term, in consideration of the Fees paid by Client under the Agreement and the applicable Order, 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.
2. 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 Support:
Email Address: enterprise-help@ionic.io
Hours of Support: 8-5 CST
Zendesk
Slack
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.
b. Response Times. Drifty shall respond to Program Errors within the time period provided for the applicable Package ordered by Client.
c. 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.
3. SOFTWARE MAINTENANCE.
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).
The support policies for each product are set out in the table below. Drifty shall have the sole discretion to update or change the support policies from time to time The latest version of the support policy for each product shall apply to the Client during the applicable Subscription Term, and can be accessed via the links provided in the table below.
| Product Name | Support policies |
| Ionic Framework | |
| Capacitor | |
| Stencil | |
| Auth Connect | |
| Identity Vault | |
| Secure Storage | |
| Apple Pay | |
| Google Pay | |
| Intune | |
| Zebra | |
| SSL Pinning |