This Subscription Agreement ("Agreement") governs the acquisition and use of Drastin products and services by the entity ("Customer") that purchased the products and services, either directly from Drastin, Inc. ("Drastin") or from one of its resellers. By accepting this Agreement, either by signing a proposal that references this Agreement or by signing a Customer Confirmation that references this Agreement (the "Order"), Customer agrees to the terms of this Agreement.
Subscription to Drastin Cloud Services
Subscription
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.
Subscription Term
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 subscription term.
Subscription Fees
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 an Order.
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’s Responsibilities.
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.
Service Terms
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.
Proprietary Rights
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.
Payment Terms
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.
Taxes
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").
Payments
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.
Compliance
Government End-Users
If Customer is a government entity or agency, Drastin provides the software licensed under this Agreement and Documentation, including related data and technology, for ultimate federal government end use solely in accordance with the following: Customer hereby agrees that the software qualifies as "commercial" computer software. Government technical data and software rights related to the software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).
Export Compliance
Customer represents and warrants that neither it nor any of its employees is a person or entity with whom U.S. entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order or other governmental action. Customer agrees not to export, directly or indirectly, any Product obtained from Drastin under this Agreement to any country for which any applicable government or any agency thereof at the time of export requires an export license or other government approval, without first obtaining such license or approval, when required by applicable law.
Warranties and Limitations
Services
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.
Disclaimer
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.
Feedback and Promotion
Feedback
If Customer provides Drastin with reports of defects in the Products or Services, reports on the operation of the Products or Services or any improvements, enhancements or other changes or modifications proposed or suggested by Customer to the Products or Services (collectively, "Feedback"), Drastin shall have all the rights to use such Feedback at its discretion including, but not limited to the incorporation of such suggested changes or modifications into Drastin products, services and the right to assign, license or to otherwise transfer to third parties the products and services so changed or modified without obligation to or recourse of Customer.
Promotion
Customer agrees that Drastin may refer to Customer as a customer and use Customer’s logo in Drastin's marketing materials and on its website.
Miscellaneous
Assignment
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.
Force Majeure
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.
Entire Agreement
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.
Definitions
Cloud Service
means Drastin’s web-based software-as-a-service platform (including all add-ons) made available through the Website, as further described in one or more Orders hereunder.
Data
means the non-public proprietary data provided to or made accessible to Drastin by Customer under this Agreement for the purpose of obtaining the Services; provided that such data shall not include publicly available information or any data independently derived by Drastin or obtained by Drastin from a third party other than by express permission from Customer.
Documentation
means any technical specification documentation generally made available by Drastin to Customer with regard to the Products or Services offered by Drastin.
Party
means Drastin and/or Customer.
Products
means the Drastin products that are ordered by Customer under an Order.
Drastin Application Suite
means the Drastin technology that permits authorized users to manage communications and content sharing with other authorized users using Drastin and non-Drastin devices.
Services
means the Drastin services that are ordered by Customer under an Order, including but not limited to the Drastin Application Suite and the Cloud Service.
Website
means the Drastin.com Internet address designated by Drastin and communicated to Customer for delivery of the Cloud Services.