Subscription to Drastin Cloud Services
Subject to the terms of this Agreement, Drastin hereby grants Customer a non-exclusive, non-transferable right to access and use
the Drastin Cloud Services, including the Drastin Application Suite as described in one or more Orders during the Subscription Term (as
defined below) for the number of approved users and devices set forth in the Order.
Access to the Drastin Cloud Service is purchased as a subscription subject to limitations on the number of users, number of data
sources, number of workspaces and number of dashboards. Subscriptions for additional terms, users and devices may be added during a
subscription term at then-current pricing. The initial subscription term shall be stated in the Order and may include both subscription
periods invoiced by a reseller and subscription periods to be invoiced by Drastin (collectively, the "Subscription Term"). The Subscription Term will commence upon delivery to Customer of access to the Drastin Cloud
Service. Following the initial Subscription Term, the subscription shall automatically renew for additional one-year periods at
Drastin’s then current pricing; provided that after the Subscription Term, each Party will have the right to cancel such automatic
renewal by delivering a written notice of termination to the other Party at least thirty (30) days prior to the end of the applicable
Customer shall pay the subscription fees applicable to the Drastin Cloud Service as set forth in the applicable Order (the
"Subscription Fees"). Additional fees may apply to certain features and add-ons as may be specified in
Users and Devices
Customer acknowledges that Drastin may include in its Services functionality to track the number of active user identifications
and to disallow use by more than the authorized number of user identifications or devices. User identifications and passwords cannot be
shared or used by more than one user. Customer is responsible for all activities that occur under Customer’s user accounts.
Customer will (a) be responsible for users’ compliance with this Agreement, Documentation and Orders, (b) be responsible for the
accuracy, quality and legality of Customer’s Data, the means by which Customer acquired Customer’s Data and Customer’s use of the Data
in connection with the Cloud Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the
Services, and notify Drastin promptly of any such unauthorized access or use, (d) use the Services only in accordance with this
Agreement, Documentation, Orders and applicable laws and government regulations, and (e) comply with terms of service of any
non-Drastin applications with which Customer uses the Services. Customer will not (a) make any Services available to, or use any
Services for the benefit of, anyone other than Customer or users, unless expressly stated otherwise in an Order or the Documentation,
(b) access any Service in order to build a competitive product or service or to benchmark with a non-Drastin product or service, or (c)
reverse engineer any Service (to the extent such restriction is permitted by law). Customer is responsible for meeting the then-current
hardware, operating system, browser and other technical requirements necessary to properly access and use the Services.
For Cloud Services, Customer acknowledges and agrees that Drastin may impose limits on the amount of storage space per Customer
or per user and such limits may be set forth in the Order or in the Drastin Cloud Solution Brief, as such Brief may be amended from
time to time. Drastin reserves the right to alter, delete, or replace the functionality of the Cloud Services over time. For so long as
Customer is current with its payment of the Subscription Fees, Drastin shall use commercially reasonable efforts to maintain the
availability of the Cloud Services.
Customer acknowledges that in providing the Cloud Services, Drastin utilizes technology and the Website, and any other software
and services (collectively, "Drastin Technology"). Subject to the express limited rights granted to
Customer hereunder, as between Drastin and Customer, Drastin retains all rights, title and interest, including all intellectual
property rights, in and to the Drastin Technology, and any and all modifications, enhancements, customizations or improvements to any
of the foregoing, and nothing herein shall be deemed or interpreted to grant or transfer any such rights, whether by implication,
estoppel, or otherwise. Customer owns and shall retain all right, title and interest, including all intellectual property rights, in
and to the Customer Data.
Unless otherwise set forth in the Order, payment of subscription fees will be due upon invoice net 30, where the invoice for the
initial term is issued upon acceptance of the Order by Drastin. Payment for all other Products and Services will be due upon invoice
net 30. Unless otherwise set forth in the Order, following the initial Subscription Term, Drastin will invoice annually in advance for
the subscription fees.
Customer is responsible for payment of all taxes and duties of every kind imposed in connection with the sale to Customer of
Products or Services ("Taxes").
All payments to Drastin shall be in United States dollars, free of any restrictions, or third party charges. Late payments will
be subject to interest at the rate of one and a half percent (1.5%) per month or the highest rate permitted by law, whichever is lower.
Warranties and Limitations
To the extent Customer purchases any Services to be provided, directly or indirectly, by Drastin, Customer understands and agrees
that all such Services shall be subject to the terms and conditions of services available at www.drastin.com, and the terms and
conditions set forth in any Order and Statement of Work between Drastin and Customer.
Products and Services
Drastin makes no warranty or representation that the Products and Services will meet Customer’s requirements or work in
combination with any hardware, applications or software products provided by third parties, that the operation of the Products and
Services will be uninterrupted, or that all defects will be corrected.
Except as set forth above, all Products and Services are provided to Customer on an "as-is" basis. Drastin disclaims all
warranties of any kind, whether express or implied, relating to the Products and Services, including: (a) any implied warranty of
merchantability, fitness for a particular purpose, title or quiet enjoyment; (b) any warranty arising out of course of dealing, usage,
or trade; and (c) any warranty arising out of the use of third-party service providers. In no event will Drastin be liable to Customer
for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, or any other
intangible loss) arising out of or relating to Customer’s access to or use of, or Customer’s inability to access or use, the Products
or Services, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, and whether or not
Drastin has been informed of the possibility of damage. Customer agrees that the maximum aggregate liability of Drastin to Customer for
all claims arising out of or relating to the use of or any inability to use the Products or Services, whether in contract, tort, or
otherwise, is limited to price paid by Customer for such Products and Services for the six (6) month period immediately preceding the
date a claim is made by Customer.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other
Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its
entirety (together with all Orders), without the other Party’s consent in connection with a merger, acquisition, corporate
reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if Customer is acquired by, sells
substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of Drastin, then Drastin may
terminate this Agreement, all Orders and the Services upon written notice to Customer. Subject to the foregoing, this Agreement will
bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Except for the obligation to pay money, neither Party will be liable for any delay or failure to perform any obligation under
this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes
or other industrial disturbances, systemic, electrical, telecommunications, or utility failures, earthquake, storms or other elements
of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyber-attacks or war, hosting or similar
services outages or denial of service (such as Microsoft Azure or Amazon Web Services outages or denial of service), worms, bots, or
similar mal ware ("Force Majeure").
Governing Law; Jurisdiction and Venue
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws
provisions thereof. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or
invalidity thereof, shall be finally settled by binding arbitration conducted in the English language in Santa Clara County, California
under the commercial arbitration rules of the American Arbitration Association ("AAA"). The award of the arbitrator shall be the sole
and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction, subject only to revocation on
grounds of fraud or clear bias on the part of the arbitrator. Notwithstanding this, application may be made to any court for a judicial
acceptance of the award or order of enforcement.
This Agreement, together with the Order and the EULA, contain the entire agreement of the parties with respect to the purchase
and sale of the Products and Services, and supersedes all previous communications, representations, understandings and agreements,
either oral or written, between the parties with respect to said subject matter. To the extent of any conflict or inconsistency between
this Agreement and any Order, SOW or any other document related to the Parties obligations hereunder, the terms of this Agreement shall
govern unless otherwise expressly agreed by the Parties in writing. By accepting this Agreement, Customer understands and agrees that
Drastin shall be relying on the terms set forth herein in providing the Products and Services and Drastin shall be entitled to enforce
the terms set forth herein.