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Last Updated: October 5, 2023
PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SOLUTIONS OFFERED BY DRYVIQ, INC. (“DryvIQ”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH DRYVIQ WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA DRYVIQ’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY DRYVIQ SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
- Order Forms; Access to the Solution. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) DryvIQ grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the DryvIQ solution(s), product(s) and/or service(s) specified in such Order Form (collectively, the “Solution,” or “Solutions”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with DryvIQ’s applicable official user documentation for such Solution (the “Documentation”). In addition, if Customer has purchased access to DryvIQ’s cloud-hosted Solution (the “Cloud Service”), then DryvIQ’s then-current Cloud Services Terms and Availability Policy (the current version of which is set forth at https://dryviq.com/cloud-service-terms/) shall also apply to such Cloud Service.
- Upon payment of any applicable fees set forth in each Order Form, DryvIQ agrees to use reasonable commercial efforts to provide (i) standard configuration, implementation, optimization, and/or migration assistance for the Solution only if and to the extent such assistance is set forth on such Order Form (“Onboarding Assistance”), and (ii) any managed services with respect to the Solution that are set forth in a statement of work attached to an Order Form, if any (“Managed Services”). If DryvIQ provides Expert Assist or Managed Services in excess of any agreed-upon scope, or if DryvIQ otherwise provides additional services beyond those agreed in an Order Form, Customer will pay DryvIQ at its then-current hourly rates for consultation.
- Support; Service Levels. Subject to Customer’s payment of all applicable fees, DryvIQ will provide support and maintenance for each Solution in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) DryvIQ’s then-current standard Technical Support and Maintenance Policies (the current version of which is attached hereto as Exhibit A).
- Solution Updates. From time to time, DryvIQ may provide upgrades, patches, enhancements, or fixes for the Solutions to its customers generally without additional charge (“Updates”), and such Updates will become part of the Solutions and subject to this Agreement; provided that DryvIQ shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that DryvIQ may cease supporting old versions or releases of the Solutions at any time in its sole discretion; provided that DryvIQ shall use commercially reasonable efforts to give Customer a minimum of 120 days prior notice of any major changes.
- Ownership; Feedback. As between the parties, DryvIQ retains all right, title, and interest in and to the Solutions, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by DryvIQ for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Solutions” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to DryvIQ with respect to the Solution (“Feedback”). Notwithstanding anything else, DryvIQ acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to DryvIQ a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair DryvIQ’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
- Fees; Payment. Customer shall pay DryvIQ fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Solution (excluding taxes based on DryvIQ’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form (including use that would place Customer into a higher usage tier than that for which Customer has already paid) (an “Overage”), then, except as may be otherwise set forth on such Order Form, (i) the Fees payable by Customer with respect to such Order Form will be updated to reflect the new pricing tier associated with the Overage (the “New Tier”), and DryvIQ will invoice Customer for the New Tier through the end of the then-current term, prorated to the date of the Overage, and (ii) such Order Form will thereafter renew at the New Tier.
- Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Solution (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Solution; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Solution; (iv) use the Solution for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Solution or any portion thereof; (vi) use the Solution to build an application or product that is competitive with any DryvIQ product or service; (vii) interfere or attempt to interfere with the proper working of the Solution or any activities conducted on the Solution; or (viii) bypass any measures DryvIQ may use to prevent or restrict access to the Solution (or other accounts, computer systems or networks connected to the Solution). Customer is responsible for all of Customer’s activity in connection with the Solution, including but not limited to uploading Customer Data (as defined below) onto the Solution. Customer (a) shall use the Solution in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Solution (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Solution in a manner that violates any third party intellectual property, contractual or other proprietary rights, nor shall the customer publish any competitive or performance metrics without the express and written permission of DryvIQ.
- Personal Data. DryvIQ shall process all Personal Data (as defined in the Data Processing Addendum) in accordance with the Data Processing Addendum in the form agreed to by DryvIQ and Customer.
- Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Solution in the course of using the Solution. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not DryvIQ, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to DryvIQ as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). DryvIQ is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Solution unless such access is due to DryvIQ’s gross negligence or willful misconduct. Customer is responsible for the use of the Solution by any person to whom Customer has given access to the Solution, even if Customer did not authorize such use. Notwithstanding anything to the contrary, Customer acknowledges and agrees that DryvIQ may (i) internally use and modify (but not disclose) Customer Data for the purpose of providing the Solution to Customer, (ii) internally use and modify (but not disclose) Usage Data (as defined below) for the purpose of generating Aggregated De-Identified Data (as defined below), and (ii) freely use, retain and make available Aggregated De-Identified Data for DryvIQ’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing DryvIQ’s products and services). “Usage Data” means Customer Data and other data regarding Customer’s usage of the Solution, but excludes the actual content of Customer’s files and documents. “Aggregated De-Identified Data” means data submitted to, collected by, or generated by DryvIQ in connection with Customer’s use of the Solution, but only in aggregate, de-identified form which can in no way be de-anonymized, deciphered or linked specifically to Customer.
- Third Party Services. Customer acknowledges and agrees that the Solution may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by DryvIQ. DryvIQ is not responsible for the operation of any Third Party Services nor the availability or operation of the Solution to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. DryvIQ does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, and subject to Section 6, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, DryvIQ may suspend or limit Customer’s access to or use of the Solution if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Solution results in (or is reasonably likely to result in) damage to or material degradation of the Solution which interferes with DryvIQ’s ability to provide access to the Solution to other customers; provided that in the case of subsection (ii): (a) DryvIQ shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, DryvIQ shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) DryvIQ shall reinstate Customer’s use of or access to the Solution, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by DryvIQ to Customer and any assistance in exporting the Customer Data, shall be billable at DryvIQ’s standard rates then in effect.
- Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Solution (in the case of Customer as Indemnitor), or (ii) the Solution (in the case of DryvIQ as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of DryvIQ do not apply with respect to the Solution or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by DryvIQ (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by DryvIQ, (iv) combined with other products, processes or materials not provided by DryvIQ (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Solution is not strictly in accordance herewith.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 7, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO DryvIQ HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Customer and DryvIQ with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and DryvIQ with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the Michigan state courts located in Washtenaw County, Michigan or the United States’ federal district courts for the Eastern District of Michigan. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) DryvIQ may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.
TECHNICAL SUPPORT AND MAINTENANCE POLICIES
For Patches, bug fixes, enhancements, and general updates
These Technical Support and Maintenance policies apply to technical support and maintenance services provided by DryvIQ, Inc. (DryvIQ) for its software products and documentation (collectively “Software”). “you” and “your” refer to the individual or entity that is currently eligible for DryvIQ Technical Support and Maintenance for the Licensed Software from DryvIQ.
to the Software, as well as upgrades to new versions of the Software will be made available to you, provided that you are current on your payments. These are provided without additional charge to you and are considered part of the Software and licensed to you pursuant to your license for the Software. Technical support is provided for any given release of the Software one year from the point in time when a newer release of the Software became available.
DryvIQ also maintains an on-line support portal https://support.dryviq.com/ to assist you in logging and tracking service requests, as well as a collection of self-help tools in the form of downloads, knowledge bases, and FAQs. You will receive credentials to access the portal upon receipt of an executed enterprise terms and order. Your access to this portal shall continue during the term of your software license agreement.
DryvIQ will use reasonable efforts to correct errors and provide maintenance for the Software as outlined below. DryvIQ, as mutually agreed upon, can change the severity level associated with a service request if it is determined that the issue does not meet the criteria defined below. Additionally, DryvIQ may choose to close a support request if the problem being reported is not reproducible. All requests for technical support and maintenance assistance will include one of the following severity levels:
(i) Severity 1 (Emergency) – The Software or a significant portion of the Software is totally inoperative and no workaround exists. Assigning this severity level to a service request should be limited to situations where a production or “live” environment is completely inoperable.
(ii) Severity 2 (High) – The Software is usable, but is functionally degraded or restricted in a significant way and no workaround exists. Assigning this severity level to a service request should be limited to situations where the normal operation of the system or a significant part of the system has been disrupted.
(iii) Severity 3 (Low) – The Software is usable but one or more functions may not operate as expected. This is a non-critical situation or one for which an acceptable, albeit temporary, workaround has already been provided.
DryvIQ will make reasonable efforts to respond to technical support and maintenance requests based on the severity level as shown above. The “Response Time” is the time elapsed between the initial report by you and when DryvIQ aims to send an initial response to your report. A “business day” means a regular business workday other than a Saturday, a Sunday or U.S. public holidays:
“Standard Business hours” means the hours between 9 am and 5 pm Eastern Time on a “business day”. All Support cases will be responded to within 2hr during the Standard Business Hours. For cases that are submitted afterhours they will be responded to the following business day.
Target Resolution Times.
While DryvIQ makes no warranties about actual resolution times, we will make all reasonable efforts to resolve technical support and maintenance requests based on the severity level as shown below:
- Obligations and Restrictions for DryvIQ self-deployed (non-hosted) Customers.
You agree to install all updates for the Software you have licensed within a reasonable period of time. You will be notified via e-mail of released software updates. You acknowledge that failure to update the software in a timely fashion may render the software inoperable, at which point DryvIQ will not be required to provide technical support.
You agree to give DryvIQ access to the installed Software as necessary and make all reasonable efforts to aid DryvIQ staff in determining the cause of any problem. This includes, but is not limited to, setting up and providing a Web conferencing tool (e.g.: Microsoft Teams, Zoom, GotoMeeting, etc.) gathering error logs and executing test scenarios. DryvIQ will provide Licensee with the type of connectivity to be used for remote access; Licensee must pre-approve all remote access arrangements. (Upon mutual agreement with the customer, limited VPN access may be required). Any such remote access by DryvIQ shall be subject to DryvIQ’ compliance with the confidentiality requirements set forth in the license agreement between DryvIQ and Licensee. Failure to provide access to the installed Software, or failure to provide reasonable efforts in assisting DryvIQ in its problem resolution efforts as set out above, shall extend the “Target Resolution Times” by a period equal to the time of the delay in providing said access.
If you request DryvIQ to provide technical support and maintenance services for (i) problems caused by your use of the Software outside the scope of the Software license or documentation or by any changes or modifications to the Software not authorized by DryvIQ; (ii) problems caused by any changes to your system environment; or (iii) any problem for which DryvIQ is not obligated to provide technical support and maintenance services, such technical support and maintenance services are subject to availability of DryvIQ personnel and will be billed to you at DryvIQ’ standard time and materials rates at the time of such service. Furthermore, the resolution of any such problems shall not serve as the basis for either (i) the termination of this contract by you.
- Term and Termination.
Technical support and maintenance services shall commence upon the date indicated in the applicable ordering document or invoice from DryvIQ and continue for the period specified.
If your license to the Software is terminated, DryvIQ’s obligation to provide technical support and maintenance services terminates at the same time. The termination, cancellation or non-renewal of technical support and maintenance services does not relieve you of your obligation to pay any amounts due or accrued as of the date of termination, or any other of your obligations to DryvIQ then or thereafter accrued.