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TERMS OF SERVICE
Droplet
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU ACCESS THE SERVICES OR COMPLETE
YOUR ORDER AND SUBSCRIPTION PROCESS WITH THE COMPANY. Unless you and the Company
execute a separate services agreement, this Agreement is expressly incorporated
into the Company’s Order Form. If you complete an order for the Services—even if
you elect not to review this Agreement when made available to you in linked or
online format—you expressly: (1) accept and agree to be bound by this Agreement
and (2) represent that you may act on behalf of your organization or legal
entity if you are a representative of the Client who is subscribing to the
Services.
1. ACCESS TO THE SERVICES.
1.1 Summary of the Services. Subject to the specific features and solutions
of your Order Form, our Services focus on providing you with online cloud
and data management solutions, digitization of documents, configurable
dashboards, digital workflows, and automated paperless solutions to
facilitate administrative and operational tasks for your organization. Your
access to and use of those Services are strictly governed by this Agreement,
both to protect the Confidential Information and Client Data (defined below)
you share with the Company and to protect our Services.
1.2 Provision of Access. The Services are provided by the Company to you as
a cloud-based ‘software-as-a-service’ subscription, meaning that Client does
not have (and will not generally receive) a license to download any aspect
of the Services, except as expressly described in this Agreement. Subject to
the terms and conditions of this Agreement, the Company hereby grants to
Client, during the Services Period, a non-exclusive, non-sublicensable,
non-transferable, and revocable right to access and use the Services, solely
for use by Client and its Authorized Users (defined below). With respect to
any Services that the Company chooses to provide through distribution of
software that Client and its Authorized Users are required to download on
their personal devices (such as computers or smartphones), the Company
hereby grants Client a non-exclusive, non-transferable, non-sublicensable,
and revocable license to use such downloadable Services during the Services
Period, conditioned on Client’s and its Authorized Users’ compliance with
this Agreement.
For purposes of this Agreement, “Authorized Users” may include any of the
following personnel who are authorized by Client to access the Services
under the rights granted to Client pursuant to this Agreement: Client’s
employees, staff, administrative team members, and personnel who are
involved in HR, workflow management, or administrative processes supported
by the Services.
1.3 Availability. During the Services Period, the Services will be generally
available to Client and Authorized Users twenty-four (24) hours per day,
seven (7) days per week, except during the following circumstances: (i)
scheduled downtime for routine or other maintenance, which the Company will
communicate to Client in advance; and (ii) during any Services Freeze
(described in Section 1.6).
2. 1.4 Support Services. Subject to any separate service level agreement
between you and the Company, the Services include the Company’s standard
support services as set forth in this Section 1.4 (the “Support Services”).
The Company may amend the Support Services from time to time in its sole
discretion by providing fifteen (15) days’ notice to Client. Support
Services may be withheld if Client is in breach of this Agreement,
including, without limitation, if Client has outstanding late payments for
its Service Fees (defined below). The Support Services include the following
commitments on the part of the Company:
1. The Company will use commercially reasonable efforts during the Services
Period, consistent with prevailing industry standards, to maintain the
Services in a manner which minimizes errors and interruptions in the
Services.
2. The Company will assist Client in diagnosing errors and malfunctions of
the Services, provided that such errors do not relate to errors or
malfunctions on the part of systems, platforms, or Equipment (defined
below) beyond the Company’s control.
3. The Company will exercise its best efforts to correct diagnosed errors
and malfunctions of the Services promptly after the Company learns of the
potential errors or malfunctions.
4. The Company and its support personnel will give general technical
assistance and maintenance for the Services during regular business
hours, which includes availability at the account manager or sales
representative email set forth in Client’s Order Form.
1.5 Use Restrictions. Client may use the Services only for Client’s and the
Authorized Users’ internal business purposes and not for any
commercialization by Client. In particular, you may not resell our Services
or any underlying features, solutions, or content to which you have access
by means of the Services. In addition, Client will not, directly or
indirectly, and will not permit any Authorized User to: (i) reverse
engineer, decompile, copy, mirror, disassemble, or otherwise attempt to
discover or reproduce the source code, object code, or underlying structure,
feature, ideas, know-how, or algorithms relevant to the Services; (ii)
modify, translate, or create derivative works based on the Services and our
online solutions; (iii) rent, lease, lend, sell, publish, transfer, or
otherwise make available the Services beyond Client’s internal use and the
access described in this Agreement; (iv) build or create applications,
programs, or services that are competitive with the Services; (v) remove any
proprietary notices or labels from the Services, our online deliverables, or
any underlying features; (vi) use the Services beyond any usage or access
limitations set forth in this Agreement or the Order Form delivered to
Client; (vii) use the Services, including any documentation, reports, or
deliverables relating to the Services, in any manner or for any purpose that
infringes, misappropriates, or otherwise violates the intellectual property
right or other right of any person, or otherwise violates applicable law; or
(viii) use the Services to transmit illicit, immoral, pornographic, or other
material that the Company, in its discretion, deems inappropriate or
unwarranted in relation to the purposes of the Services.
If you know of, or suspect, copyright or trademark infringement or other
unauthorized or improper use of the features of our Services by third
parties, you agree to notify the Company as soon as reasonably possible,
unless applicable law prohibits you from delivering the notice.
1.6 Services Freeze. In connection with the Company’s monitoring activities
set out in Section 1.7 below, and notwithstanding anything to the contrary
in this Agreement, Company may temporarily suspend and freeze all or any
portion of Client’s access to the Services (a “Services Freeze”) if any of
the following occur:
1. The Company reasonably determines that (A) there is a threat or attack
on any of the Services or Company’s intellectual property rights; (B)
Client’s use of the Services disrupts or poses a security risk to the
Company or to any other client or vendor of the Company; (C) Client or
its Authorized Users are using the Services for fraudulent or illegal
activities; or (D) the Company’s provision of the Services to Client is
prohibited by applicable law.
2. Any vendor or third party provider of Company has suspended or
terminated Company’s access to or use of any third-party services or
products required to enable Client to access the Services.
3. Client breaches the terms of this Agreement (including failure to pay
Service Fees for more than sixty (60) days past the date such Service
Fees are due under Section 4). Any failure to pay Service Fees that
results in the Client’s rights being suspended pursuant to Section 3.4
below shall constitute a Service Freeze under this Section. Company
reserves the right to maintain the Services Freeze until Client pays all
applicable fees, including any Late Fees.
The Company agrees to use commercially reasonable efforts to provide
advance written notice of any Services Freeze to Client and to provide
updates regarding resumption of access to the Services following any
Services Freeze. However, the Company will have no liability for Losses
(defined below) that Client may incur as a result of a Service
Suspension if such Losses are a result of actions taken by Client or its
Authorized Users in breach of this Agreement.
1.7 Monitoring andControl Over Services. So long as the Company does not
materially decrease the functionality of Services during the Services
Period: (i) the Company retains sole control over the operation, provision,
maintenance, monitoring, management, and performance of the Services,
including the selection, deployment, modification, and replacement of any
software or operational component of the Services, and maintenance,
upgrades, corrections or repairs thereof; (ii) the Company reserves the
right to make any changes to any component or feature of the Services that
it deems necessary or useful to maintain or enhance the quality or delivery
of Services to its clients in general (so long as such changes do not
materially reduce or adversely impact Client’s rights under this Agreement);
and (iii) the Company may use necessary third-party resources and service
providers to deliver the Services and perform its obligations under this
Agreement.
2. CLIENT RESPONSIBILITIES.
2.1 Client Account.After completing the Order Form process, you and your
Authorized Users will have access to the Services through the Company’s
online website and cloud storage solutions (available at www.droplet.io).
Client is responsible for identifying an administrative username and
password for your account with the Company (the “Client Account”). Although
the Company can assist with lost access information, Client is solely
responsible for maintaining, retaining, and keeping confidential the Client
Account information, including Client’s username and password (as well as
security preferences selected by you on your account). If you lose access to
or information concerning the Client Account, please contact the Company or
your designated account representative for assistance. The Company reserves
the right to refuse registration of any Client Account or cancel passwords
it deems inappropriate under the terms of this Agreement.
2.2 Responsibility for Authorized Users. Client is responsible and liable
for all uses of the Services resulting from access provided by Client to its
Authorized Users, regardless of whether such access or use is permitted by
or in violation of this Agreement. For avoidance of doubt, Client is
responsible for all acts and omissions of Authorized Users that may infringe
this Agreement (including workflow postings, submissions for digitization,
and data shared by Authorized Users on the Services platform). Client is
responsible for making its Authorized Users aware of this Agreement’s
provisions to the extent the provisions apply to the Authorized User’s
access to the Services. Authorized Users may access the Company’s general
website for standard terms of use and privacy policy information and
disclosures, but their access to those policies will not free Client of
responsibility for Authorized Users in accordance with this Section.
2.3 Billing Information. Client is responsible for uploading to the Client
Account and keeping the Company reasonably updated with Client’s accurate
name, notice address, email information, and billing information (including
payment card information on the Client Account), for purposes of payment of
Service Fees and receipt of notices from the Company.
2.4 Client Acknowledgements. Client acknowledges and agrees that Client will
use the Services and any Company websites fully in compliance with (i) this
Agreement and (ii) all applicable laws and regulations governing the
Client’s obligations hereunder. Client acknowledges that Company will
exercise reasonable efforts to implement and maintain the internal security
practices laid out in Section 3.5, but that, to aid in the protection of
Client Data, Client should exercise best efforts to comply with the Client
obligations laid out in this Section 2, including maintaining secure
passwords, using SSO authentication methods where possible when accessing
the Services, and reporting any suspicious activity to the Company.
2.5 Equipment Responsibilities. Client is responsible for obtaining and
maintaining any equipment, devices, and ancillary services needed to connect
to, access, or otherwise use the Services, including, without limitation,
operating hardware, modems, servers, software, systems, networking, web
servers, and other similar components (collectively, “Equipment”). Client is
also responsible for maintaining the security of the Equipment, and for all
uses of the Equipment by Client or its Authorized Users in connection with
the Services.
2.6 Third Party Products. Client is responsible for complying with all terms
of use for any third-party software, content, service, product, or website
it voluntarily loads, creates, or accesses when using the Services
(collectively, “Third-Party Products”). If Client does not agree to abide by
the applicable terms for any such Third-Party Products, then Client should
not install or use those Third-Party Products.
2.7 Sharing of Client Data. During the course of the Services, Client and
Authorized Users may choose to voluntarily share and upload certain
information, documents, or data to the Company and the Services to enjoy the
full functionality of the Services and the solutions the Company offers for
paperless workflows. For example, this data may include business emails or
disclosures, hard-copy documents that will be uploaded to create online
workstreams and processes, employment information of Client’s staff,
internal company data and trade secrets, or other operational data and
documents relating to Client and Authorized Users, among other similar
information (collectively, “Client Data”). The Company acknowledges that, as
between the Company and Client, Client and its Authorized Users (for their
Personal Data, as defined below) own all right, title, and interest,
including all intellectual property and data privacy rights, in and to the
Client Data. For purposes of the Services, Client grants the Company a
non-exclusive, worldwide, royalty-free right and license to any intellectual
property or other rights underlying the Client Data that are necessary for
the Company to perform and support the Services. To the extent that any
Client Data must be or is voluntarily shared by Client in connection with
the Services, Client shall be solely responsible for lawfully collecting and
establishing the legal basis for sharing with the Company all Client Data
(including, without limitation, Personal Data included therein).
3. CONFIDENTIALITY; OWNERSHIP RIGHTS; DATA PRIVACY.
3.1 Confidentiality of Information. Each party receiving information under
this Agreement (the “Receiving Party”) understands that the party disclosing
the information (the “Disclosing Party”) has disclosed as of the Effective
Date (defined below) or may disclose confidential and non-public technical,
proprietary, operational, or financial information relating to the
Disclosing Party’s business, internal staff and personnel, clients and
vendors, and services and products (collectively, the “Confidential
Information”). For purposes of this Agreement, (i) Confidential Information
of the Company includes non-public or proprietary information regarding
features, functionality, and performance of the Services and its underlying
systems; and (ii) Confidential Information of Client includes Client Data.
Confidential Information of the Parties does not include information that,
at the time of disclosure is: (A) in the public domain without breach of the
terms of this Agreement; (B) known to the Receiving Party at the time of
disclosure without breach of the terms of this Agreement; (C) rightfully
obtained by the Receiving Party on a non-confidential basis from a third
party; or (D) independently developed by the Receiving Party, in accordance
with applicable law and without breach of the terms of this Agreement.
1. In connection with receipt of any Confidential Information, the
Receiving Party acknowledges and agrees during the Services Period and
any Renewal Period, and for a period of three (3) years thereafter
(subject to longer retention or protection periods for any Personal Data
included therein): (A) to take commercially reasonable precautions to
protect the confidentiality and secure nature of all Confidential
Information of the Disclosing Party; (B) not to use or divulge to any
third person any such Confidential Information, except as permitted
under the terms of this Agreement; and (C) to restrict disclosure to the
Receiving Party’s employees, representatives, officers, staff, service
providers, or other agents who have a reasonable need to know the
Confidential Information for the Receiving Party to exercise its rights
or perform its obligations under this Agreement.
2. Notwithstanding the foregoing, each party may disclose Confidential
Information to the limited extent required to: (A) comply with the order
of a court or other governmental body, or as otherwise necessary to
comply with applicable law, provided that the party making the
disclosure pursuant to the order shall first have given written notice
to the other party and made a reasonable effort to obtain a protective
order; or (B) establish a party’s rights under this Agreement.
3. On the expiration or termination of this Agreement or upon the
Disclosing Party’s earlier request, the Receiving Party shall promptly
return to the Disclosing Party all copies, whether in written,
electronic, or other form or media, of the Disclosing Party’s
Confidential Information, or destroy all such copies and certify in
writing to the Disclosing Party that such Confidential Information has
been destroyed. The Company also retains the right to delete Client Data
in accordance with Section 3.4 below.
3.2 Ownership Rights. The Company retains all rights not expressly granted
to Client in this Agreement. In particular, the Company shall own and retain
all right, title, and interest in and to: (i) the Services, all
improvements, enhancements, or modifications thereto; (ii) any software,
applications, inventions, features, or other technology developed in
connection with the Services; (iii) any suggestions or feedback provided to
the Company by Client; and (iv) all intellectual property or other
applicable rights related to any of the foregoing.All of the content and
material used in constructing the Services and maintaining our websites are
subject to United States and international copyright, trade dress, trademark
and other intellectual property laws with all rights thereto held and
reserved by the Company.
3.3 Use of Aggregated Data. The Company retains the right to collect and
analyze data and information related to Client’s, and the Company’s other
customers’, use of the Services so long as the Company uses the data in an
aggregated and anonymized manner, as set out in this Section (the
“Aggregated Data”). For example, Aggregated Data might be gathered and
applied by the Company to perform surveys, market analytics, or other
activities to enhance and improve our Services. As between the Company and
Client, all right, title, and interest in Aggregated Data—provided that it
cannot identify Client, any Authorized User, or Client’s Confidential
Information—belong to and are retained solely by the Company for support,
enhancement, and provision of the Services. Client acknowledges that the
Company will be free (during and after the Services Period) to: (i) use
Aggregated Data to improve and enhance the Services and for other
development, diagnostic, and corrective purposes in connection with the
Services and other Company ventures; and (ii) disclose Aggregated Data in
connection with the Company’s business, subject to any applicable privacy
laws, and use the Aggregated Data for any other lawful purpose.
3.4 Processing of Personal Data.
1. Company Obligations as Service Provider.The Company agrees to collect
and process Client Data (including Personal Data, as defined below) only
as a service provider and processor acting on behalf of Client, who
shall be the ultimate controller of all Client Data. This Agreement,
absent a separate data processing agreement between the parties, will
document Client’s written instructions for processing of Client Data and
Personal Data. The Company will not directly or indirectly sell any
Client Data or retain, use, or disclose any Client Data for any reason
other than for the purpose of providing the Services to Client and
Authorized Users under the terms of this Agreement. In providing the
Services, the Company will exercise commercially reasonable efforts to
limit Client Data collection, use, retention, and disclosure to
activities reasonably necessary and proportionate to achieve the
purposes of this Agreement or another compatible purpose permitted by
applicable law.
2. Definition of Personal Data. For purposes of this Agreement, “Personal
Data” means all personal data and information that (A) is defined as
“personal data” or “personal information” under applicable data
protection or consumer privacy laws and (B) is provided by Client to the
Company (directly or indirectly) for processing, use, or storage as a
part of the Company’s provision of the Services to Client and its
Authorized Users.
3. Security Measures. The Company maintains industry standard technical and
organizational measures to secure its systems and prevent unauthorized
access to or use of the Services and to protect Client Data (including
Personal Data) against accidental loss, corruption, and Data Breaches
(defined below). For example, the Company will exercise best efforts to
coordinate with Client to maintain strong password protection, SSO
authentication, and reporting of suspicious activity concerning the
Services. Consistent with the limitations in Section 8 below, the
parties acknowledge and agree the Company shall not be liable for any
loss, destruction, alteration, unauthorized disclosure, or corruption of
Client Data caused by any third party outside the Company’s control, so
long as the Company did not fail in the maintenance of (or perform an
act violating) its technical and organizational measures. In the event
of a Data Breach relating to Client Data, the Company will, consistent
with and to the extent permitted by applicable law, notify Client of the
Data Breach as soon as reasonably practicable, but no later than sixty
(60) days, after the Company becomes aware of the Data Breach and
implement an incident response plan in accordance with accepted industry
standards or the Company’s internal policies. For purposes of this
Agreement, a “Data Breach” means: (A) any unauthorized access to or
disclosure of Client Data; and (B) any act or omission that materially
compromises the security, confidentiality, or integrity of Client Data
(including Personal Data) or the physical, technical, administrative, or
organizational safeguards put in place by the Company with respect to
the Client Data.
4. Privacy and RiskAssessments. The Company agrees to reasonably cooperate
with Client in carrying out any privacy impact or risk assessment of the
Services as is reasonable in light of the Personal Data that is being
processed and as may be required under applicable data protection laws,
so long as Client gives at least thirty (30) days prior written notice
to Company of the assessment request.
5. Sub-processing and Subcontractors. The Company will only subcontract or
engage with subprocessors, subcontractors, and third-party service
providers (each, a “Subcontractor”) for the strict purpose of processing
Client Data in furtherance of the Services. For example, the Company
may, in its discretion, elect to engage with a third party payment
processor to assist with gathering Services Fees under this Agreement. A
list of the Company’s existing (and necessary) Subcontractors who
support material functions of the Services is available on request from
the Company. In the event the Company engages with any additional
Subcontractor during the Services Period, the Company will promptly
notify Client of the Subcontractor’s identity and relation to the
Services.
6. Data Retention and Removal. In general, the Company will retain Client
Data until the earlier of: (A) the termination of this Agreement or (B)
the date on which processing is no longer necessary for the purposes of
either party performing its obligations in relation to this Agreement
(in accordance with applicable law).
However, in the event that any Service Fees are not timely paid by
Client under this Agreement, the Company will consider Client’s account
and rights to access the Services under this Agreement either
‘delinquent’, ‘suspended’, or ‘expired’, depending on the length of time
the Service Fees are past due, as set forth in the table below. Once
Client’s access to the Services has been suspendedfor sixty (60) days
(i.e., after 120 days of failure to make applicable Service Fee
payments), Client’s account and rights shall be deemed by the Company as
expired. If Client’s rights and account remains in an expired state for
thirty (30) additional days (consistent with the table below), the
Company is no longer required to retain and may, at its election, return
to you or delete any of your data from the Company’s platform that it
holds in connection with providing the Services, including any Client
Data or Personal Data. Additionally, you will not be allowed to access,
download, or export any data created by the Company, or its applications
or systems, in connection with the Services provided to you after the
Company has complied with the past-due timelines set forth in this
Section.
Late Payment Timeline – Status of Client’s access to the Services
Days past due on Service FeeStatus of Client’s access rights30
daysDelinquent60 daysSuspended120 daysExpired150 daysClient Data may be
deleted from Company systems.
4. SERVICE FEES & PAYMENT.
4.1 Implementation & Service Fees. Client will pay the Company the one-time
implementation fee (“Implementation Fee”) and the general access and service
fees for the Services (collectively, the “Service Fee”) within thirty (30)
days from the due date on each applicable invoice of the Company, in
accordance with the pricing and details set forth in the Order Form. Unless
agreed to by the parties in a separate written instrument, all ongoing
Service Fees shall be paid annually during the Services Period consistent
with the thirty (30) day timeline described above, with payment being
acceptable in the form of written check, ACH transfer, or credit/debit card
payment through the Company’s payment card Subcontractor (e.g., Stripe). In
general, and unless otherwise expressly waived by the Company, your Order
Form will include a clear indication of the one-time Implementation Fee due
within thirty (30) days of your subscription and access to the Services.
4.2 Changes to Service Fee (Annual Basis). To account for adjustments in the
market and offering of the Services going forward, the Company reserves the
right to annually increase the pricing of your Service Fee so long as the
Company provides you with notice of the increase no later than sixty (60)
days before the expiration of each successive year during the Services
Period.
4.3 Late Fee. Unpaid Implementation and Service Fees are subject to a late
fee charge (a “Late Fee”) equal to the lesser of: (i) the annual rate of
12%, compounded monthly on the delinquent payments or (ii) the maximum
lawful amount, on any outstanding unpaid balance for all delinquent amounts,
together with all expenses of collection (as outlined inSection 9.7). The
failure to timely make payments under this Agreement and your Order Form may
also result in (A) a Services Freeze under Section 1.6 or (B) termination of
the Services and this Agreement as set out in Section 5.2 below.
4.4 Taxes. All Service Fees payable by Client under this Agreement are
exclusive of taxes and similar assessments. In general, Client is
responsible for all sales, use, and excise taxes, and any other similar
taxes, duties, and charges of any kind imposed by any federal, state, or
local governmental or regulatory authority on any fees and amounts payable
by Client hereunder, other than any taxes imposed on the Company’s income.
4.5 Fee Disputes. If Client has any disputes, claims, or disagreements with
respect to Implementation Fees, Services Fees, or Late Fees due and payable
under this Agreement, you must promptly notify the Company within fifteen
(15) days of your discovery of the dispute, claim, or disagreement. The
Company will exercise reasonable efforts to investigate and, in the
Company’s discretion, assist you in resolving the payment dispute. However,
no refunds or returns are guaranteed by this statement, in accordance with
Section 5.4 below. In the event that Client raises any chargeback or dispute
claim with Client’s credit or debit card company without first coordinating
with the Company to resolve the dispute as to the payments under this
Agreement, Client understands that the Company may be subjected to
unwarranted fees and costs from Client’s credit card or bank provider.
Accordingly, Client agrees to reimburse the Company for any additional fees
or costs (including costs of defense) that result from a dispute or
chargeback scenario that proves to be false or is the result of a breach or
failure on the part of Client (and not the Company) under this Agreement.
5. SERVICES PERIOD AND TERMINATION.
5.1 Services Period. Subject to earlier termination as provided below, the
Services period and term of this Agreement (the “Services Period”) begins on
the launch or initial date set forth in Client’s Order Form (the “Effective
Date”) and continues for the monthly, annual, or multi-year subscription
timeframe described therein. Except as otherwise agreed to or waived in
Client’s Order Form, any Services Period will automatically renew for
successive periods, each the length of the initial Services Period (each, a
“Renewal Period”) unless either party gives the other party written notice
of termination (which may be through email) at least thirty (30) days before
the expiration of the then-current Services Period or Renewal Period. Client
acknowledges and understands that its Service Fees payable during any
Renewal Period shall be subject to the rate increase described in Section
4.2 above.
5.2 Termination for Nonpayment. In addition to any other express termination
or suspension right set forth in this Agreement, the Company may terminate
this Agreement, effective immediately on written notice to Client, if
Client’s account remains in an expired condition for more than thirty (30)
days (consistent with Section 3.4(vi) above).
5.3 MutualTermination for Cause. Each of Client and the Company (the
“Non-Breaching Party”) may terminate this Agreement, effective on written
notice to the other party (the “Breaching Party”), if the Breaching Party
materially breaches the terms of this Agreement, and such breach: (i) is
incapable of cure; or (ii) being capable of cure, remains uncured thirty
(30) days after the Non-Breaching Party provides the Breaching Party with
written notice of the alleged breach (for example, continued interruption of
the Services without cure during such window). In addition, the
Non-Breaching Party may terminate this Agreement, effective immediately upon
written notice to the Breaching Party, if the Breaching Party: (A) becomes
insolvent or is generally unable to pay, or fails to pay, its debts as they
become due; (B) files or has filed against it, a petition for voluntary or
involuntary bankruptcy or otherwise becomes subject, voluntarily or
involuntarily, to any proceeding under any domestic or foreign bankruptcy or
insolvency law; (C) makes or seeks to make a general assignment for the
benefit of its creditors; or (D) applies for or has appointed a receiver,
trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its
property or business.
5.4 Refund Procedure on Termination. Except where this Agreement is
terminated for cause by Client in accordance with Section 5.3 above, all
orders and payments to the Company are final, nonrefundable, and
non-creditable, once the Client has paid the Service Fee for the applicable
Services Period or Renewal Period. If you are not satisfied with your
Services or this Agreement, please email the Company (available at
support@droplet.io), and a service or sales representative will assist you
in processing any eligible refund request or payment dispute, if applicable,
pursuant to the terms of this Agreement.
5.5 Survival. All sections of this Agreement which by their nature should
survive termination will survive termination or expiration of this
Agreement, including, without limitation, confidentiality obligations
(Section 3.1), ownership of intellectual property (Section 3.2), data
privacy provisions (Section 3.4), rights to payment (Section 4), warranty
disclaimers (Section 6), indemnification (Section 7), and limitations of
liability (Section 8).
6. LIMITED WARRANTY & DISCLAIMER.
6.1 Limited Warranty. As of the Effective Date, the Company represents and
warrants to Client that the Services will conform in all material respects
with applicable laws and that the Company owns (or has received necessary
rights to use) the intellectual property and other rights necessary to
provide the Services to Client.
6.2 DISCLAIMER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE. THE COMPANY DOES NOT MAKE ANY WARRANTY AS TO
THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES BY CLIENT AND ITS
AUTHORIZED USERS. THE SERVICES ARE PROVIDED “AS IS” AND “AS ACCESSED”, AND
EXCEPT AS EXPRESSLY INDICATED IN THIS AGREEMENT, THE COMPANY DISCLAIMS ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE COMPANY
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE, OR TRADE PRACTICE. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT ITS
USE OF THE SERVICES AND ANY OF THE CONTENT, INFORMATION, MATERIALS, PRODUCTS
OR OTHER SERVICES INCLUDED ON, OR MADE AVAILABLE THROUGH THE SERVICES, IS AT
CLIENT’S SOLE DISCRETION AND RISK.
THIS SECTION IS SUBJECT TO ALL APPLICABLE LAWS THAT MAY PROHIBIT THE
DISCLAIMERS AND WAIVERS DESCRIBED HEREIN, PROVIDED THAT THE INVALIDITY OF
ANY STATEMENT IN THIS SECTION SHALL NOT SERVE TO INVALIDATE ANY OTHER
PROVISION OF THIS AGREEMENT.
7. INDEMNIFICATION.
7.1 Company Indemnification. The Company shall indemnify, defend, and hold
harmless Client from and against any and all losses, damages, liabilities,
costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client
resulting from any third-party claim, suit, action, or proceeding
(“Third-Party Claim”) that the Services, or any use of the Services in
accordance with this Agreement, infringe or misappropriate a third party’s
intellectual property rights, provided that Client promptly notifies the
Company in writing of the Third-Party Claim, cooperates with the Company in
relation to the Third-Party Claim, and grants the Company sole authority to
control the defense and settlement of such Third-Party Claim.
7.2 Exclusions from Company Indemnity Obligations. The obligations in
Section 7.1 do not apply with respect to portions or components of the
Service: (i) not supplied by Company; (ii) that are modified without the
express consent or involvement of the Company; (iii) combined with other
products, processes, or materials where the Third-Party Claim relates to
such combination; (vi) where Client continues allegedly infringing activity
after being notified thereof or after being informed of modifications that
would have avoided the alleged infringement; or (v) where Client’s use of
the Services is not strictly in accordance with this Agreement.
7.3 Client Indemnification. Client shall indemnify, hold harmless, and, at
the Company’s option, defend the Company from and against any Losses
resulting from (i) any Third-Party Claim alleging the Client Data, or any
use of the Client Data by the Company in accordance with this Agreement,
infringes or misappropriates any third party’s intellectual property or
privacy rights and (ii) any Third-Party Claim based on Client’s or any
Authorized User’s: (A) negligence or willful misconduct; (B) use of the
Services or our website and applications in a manner not authorized by this
Agreement; (C) use of the Services in combination with data, software,
hardware, or Equipment not provided by the Company or authorized by the
Company in writing; or (D) modifications to the Services not made by the
Company. Client shall, at all times, keep the Company reasonably informed as
to any Third-Party Claim against the Company that Client assumes the defense
of under this Section (which defense must be consented to in advance by the
Company). The Company reserves the right, at our own expense, to assume the
exclusive defense and control of any matter otherwise subject to
indemnification by Client under this Section.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE UNDER THIS AGREEMENT UNDER ANY LEGAL
OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES;
(ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION,
REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE,
INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR
BREACH OF DATA OR SYSTEM SECURITY NOT CAUSED BY THE COMPANY; OR (v) COST OF
REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE
COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR SUCH LOSSES WERE
OTHERWISE FORESEEABLE TO THE PARTIES. IN NO EVENT WILL THE COMPANY’S
AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT UNDER ANY LEGAL OR
EQUITABLE THEORY EXCEED THE TOTAL AMOUNTS AND FEES PAID AND AMOUNTS AND FEES
ACCRUED BUT NOT YET PAID TO THE COMPANY UNDER THIS AGREEMENT IN THE TWELVE
(12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LOSSES.
9. MISCELLANEOUS.
9.1 Severability. If any provision of this Agreement is found to be
unenforceable or invalid, that provision will be limited or eliminated to
the minimum extent necessary so that this Agreement will otherwise remain in
full force and effect and enforceable.
9.2 Assignment. This Agreement is not assignable, transferable, or
sublicensable by Client except with the Company’s prior written consent, in
light of the Services being offered and sold under terms unique to Client.
The Company may transfer and assign, whether by operation of law, merger,
direct assignment, or otherwise, any of its rights and obligations under
this Agreement without consent of Client, so long as the assignment or
change of control does not materially impact the rights of Client and its
Authorized Users to continue to use the Services.
9.3 Entire Agreement; Amendment. This Agreement and policies of the Company
incorporated herein are the complete and exclusive statement of the mutual
understanding of the parties and supersedes and cancels all previous written
and oral agreements, communications, and other understandings relating to
the Services. All waivers, amendments, and modifications to this Agreement
must be in writing and signed by both parties to be enforceable by the
parties (except as expressly permitted hereunder, including with respect to
Support Services changes described in Section 1.4).
9.4 Relationship. No agency, partnership, joint venture, or employment
relationship is created as a result of this Agreement and Client does not
have any authority of any kind to bind the Company in any respect
whatsoever.
9.5 Notices. All notices, requests, and other communications under this
Agreement must be in writing and addressed to the other party at its address
or email set forth herein or in the Order Form between the parties, and a
notice under this Agreement is effective only on receipt by the receiving
party.
9.6 Governing Law. This Agreement and the Services provided to Client are
governed by Utah law (without regard to its conflict of laws provisions),
and Client agrees that any dispute shall be brought exclusively by the
parties in Utah’s Third District Court or in the United States District
Court for the District of Utah. CLIENT EXPRESSLY WAIVES (i) ANY OBJECTION TO
THE JURISDICTION OF SAID COURTS AND (ii), TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE OR CLAIM UNDER
THIS AGREEMENT.
9.7 Right to Fees (Limited). If any Implementation Fees, Service Fees, Late
Fees, or other amounts due and payable under this Agreement are referred by
the Company to an attorney or third party debt collection agency for
collection, Client agrees to be responsible for all collection costs,
reasonable attorney’s fees, court costs, and a collection fee as allowed by
applicable law (including, without limitation, Utah Code § 12-1-11).
9.8 Publicity. Client agrees to reasonably cooperate with the Company to
serve as a reference account upon request, and hereby grants the Company a
license and right to display Client’s name and logo on its website and other
marketing and sales materials to communicate that Client is a customer of
the Company.
9.9 Compliance with Laws. Client and the Company shall materially comply
with all applicable federal laws, regulations, and rules, and complete all
required undertakings (including obtaining any necessary licenses or
approvals), that relate to their respective performance under this
Agreement, including, without limitation, all export laws and applicable
data privacy laws with respect to the Services.
9.10 Updates to Online Agreement. The Company may revise and update the
online, linked version of this Agreement to implement changes and
modifications from time to time in the Company’s sole discretion (for
example, to update billing procedures or the general description of the
Services). All changes and modifications are effective immediately when the
Company posts them to the link under which this Agreement can be found;
provided, however, the changes and modifications the Company implements will
only serve to bind Client to the extent: (i) Client is notified of the
changes; and (ii) Client either consents to the changes or, alternatively,
continues to use the Services after receipt of the Company’s notice. Any
changes or modifications to this Agreement under this Section will not apply
retroactively.
Agree
UNFORTUNATELY, THIS SUBMISSION WAS UNABLE TO LOAD.
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