DROP TERMS OF SERVICE
LAST UPDATED: 01.28.2021
- “Ancillary Services” means implementation, training or consulting services described in the package of Services ordered by Customer or that Drop may perform as described in an Order Form or SOW agreed to by the parties.
- “Authorized Purposes” means for Customer’s internal business purposes.
- “Authorized Users” means, where Customer is a business entity, Customer’s employees, consultants, contractors, and/or agents: (a) for whom access to the Drop Platform during the Subscription Term has been purchased by Customer, (b) who are authorized by Customer to access and use the Drop Platform, and (c) who have been supplied user identifications and passwords for such purpose by Customer (or by Drop at Customer’s request).
- “Drop Platform” means the Drop hosted software platform described in an applicable Order Form, proposal or SOW, provided that such definition excludes any Open Source Software that may be used to provide the Drop Platform and all Third Party Offerings.
- “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or its Authorized Users and received and analyzed by the Drop Platform.
- “Customer System” means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business .
- “Documentation” means the printed, paper, electronic or online user instructions and help files made available by Drop for use with the Drop Platform, as may be updated from time to time by Drop.
- “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
- “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
- “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
- “Order Form” means the ordering documents for Services purchased from Drop that are submitted electronically by Customer or executed by the parties from time to time, including modifications, supplements and addend thereto. Order Forms are incorporated herein.
- “Services” means the services provided by Drop hereunder, including the Ancillary Services, the Support Services and access to the Drop Platform.
- “Statement of Work” or “SOW” means a written statement of work entered into and signed by the parties describing Ancillary Services to be provided by Drop to Customer.
- “Subscription Term” means the period for which Customer is permitted to access and use the Drop Platform, as set forth in an applicable Order Form.
- “Support Services” means the support and maintenance services offered by Drop and purchased by Customer pursuant to an Order Form.
- “Third Party Offerings” means certain software or services provided or performed by third parties that interoperate with the Drop Platform.
ORDERS; LICENSES; AND RESTRICTIONS.
- Orders. Subject to these Terms, Customer may order Services by submitting or executing one or more Order Forms. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Drop regarding any future functionality or features.
- Access and Use. Subject to Customer’s compliance with the terms and conditions contained in these Terms, Drop, during the relevant Subscription Term, herby grants Customer and, if applicable, its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Drop Platform in accordance with the Documentation, in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the Drop Platform may be subject to certain limitations, such as, for example, certain functionality is not available in all customer service plans. Any such limitations will be specified in the applicable Order Form, or in the Documentation.
- Restrictions. ****Customer shall not, directly or indirectly, and Customer shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Drop Platform; (b) modify, translate, or create derivative works based on any element of the Drop Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Drop Platform; (d) use the Drop Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Authorized Users; (e) remove any proprietary notices from the Documentation; (f) use the Drop Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Drop Platform; (h) introduce any Open Source Software into the Drop Platform; or (i) attempt to gain unauthorized access to the Drop Platform or its related systems or networks.
- Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Drop.
THIRD PARTY OFFERINGS.
- Use of Third Party Offerings. Drop or third parties may from time to time enable Customer to use the Drop Platform in connection with Third Party Offerings. Any use by Customer of any such Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. Drop does not warrant or support any Third Party Offering, whether or not it is designated by Drop as “certified” or otherwise. If Customer installs or enables any Third Party Offering for use with Drop Platform, Customer acknowledges that Drop may allow providers of that Third Party Offering to access Customer Data as required for the interoperation and support of such Third Party Offering with the Drop Platform. Drop shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by the providers of Third Party Offerings. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Drop Platform features on reasonable terms, Drop may cease providing such features without entitling Customer to any refund, credit, or other compensation.
- Access Codes. To the extent that Drop requires that Customer grant Drop authorizations, passwords or other user credentials to a Third Party Offering (“Access Codes”) to retrieve Customer Data or to enable interoperability with the Drop Platform, Customer shall promptly provide such Access Codes. Drop shall not share, reassign, divulge or disclose any Access Codes except to Drop employees or contractors specifically engaged in the performance of the Services.
- Third Party Hosting. Drop may use the services of one or more third parties to deliver all or part of the Services. Drop will pass-through any warranties to the extent that Drop receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
- Passwords. Drop will issue an Administrative login and password to Customer and Customer shall be responsible for creating all accounts and passwords for all of its Authorized Users. Customer and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by person to which it was issued. Customer is solely responsible for any and all access and use of the Drop Platform that occurs using the logins and passwords of Customer and its Authorized Users. Customer shall restrict its Authorized Users from sharing passwords. Customer agrees to immediately notify Drop of any unauthorized use of any account or login and password issued to Customer and/or its Authorized Users. Drop shall have no liability for any loss or damage arising from Customer’s or its Authorized Users failure to comply with the terms set forth in this Section.
- No Circumvention of Security. Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Drop Platform. Customer will immediately notify Drop of any breach, or attempted breach, of security known to Customer.
- Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Drop Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a separate agreement between Customer and Drop referencing these Terms, Drop shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
- Acceptable Use. Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Drop Platform. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Drop Platform, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Drop Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Drop Platform or another's computer or mobile device; (d) not to use the Drop Platform for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Drop Platform or interfere with other ability to access or use the Drop Platform; (f) not to distribute, promote or transmit through the Drop Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another user’s use and enjoyment of the Drop Platform; (i) not to use the Drop Platform in any manner that impairs the Drop Platform, including without limitation the servers and networks on which the Drop Platform is provided; (j) to comply with all regulations, policies and procedures of networks connected to the Drop Platform and Drop’s service providers; and (k) to use the Drop Platform only in accordance with the Documentation. Customer acknowledges and agrees that Drop neither endorses the contents of any Customer communications or Customer Data, nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Drop may remove any violating content posted or stored using the Drop Platform or transmitted through the Drop Platform, without notice to Customer. Notwithstanding the foregoing, Drop does not guarantee and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the Drop Platform for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the Drop Platform.
- Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Drop to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Drop of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Drop at the e-mail addresses specified by its Authorized Users for login purposes. In addition, Customer agrees that Drop may rely and act on all information and instructions provided to Drop by Authorized Users from the above-specified e-mail addresses.
- Temporary Suspension. Drop may temporarily suspend Customer’s or its Authorized Users’ access to the Drop Platform in the event that either Customer or any of its Authorized Users is engaged in, or Drop in good faith suspects Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Drop will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Drop’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any such notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its Authorized User sub-accounts. Customer agrees that Drop shall not be liable to Customer, Authorized Users, or any third party if Drop exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Drop’s reasonable satisfaction, Drop shall reinstate Customer’s and its Authorized Users’ access to and use of the Drop Platform. Notwithstanding anything in this Section to the contrary, Drop’s suspension of access to the Drop Platform is in addition to any other remedies that Drop may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Drop may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
- Customer Contact Communication. Certain functionality of the Drop Platform may permit Customer to (a) provide the contact information of customers and potential customers (“Customer Contacts”) or (b) configure Customer’s accounts in other services to redirect third party messages to the Drop Platform, in each case so that the Drop Platform may communicate with such Customer Contacts on Customer’s behalf. By providing such contact information or otherwise choosing to use the Drop Platform to communicate with Customer Contacts, Customer represents and warrants: (y) Customer has obtained all consents required from such Customer Contacts to permit the Customer Contacts to be contacted by phone, text, email, and/or social media on Customer’s behalf; and (z) Customer agrees that Drop and/or the Drop Platform may contact Customer Contacts by phone, text, email and/or social media on Customer’s behalf. Customer agrees that Drop shall have no liability for third party complaints arising from Customer’s failure to obtain any required consents pursuant to this Section and Customer will indemnify, defend and hold Drop harmless from and against any and all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees and expenses) arising from any violation of state or federal laws or regulations, or any third party’s rights that result from such failure.
- Availability. Subject to the terms and conditions of this Agreement, Drop will use commercially reasonable efforts to make the Drop Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Drop will use commercially reasonable efforts to provide at least 72 hours advance notice, and (b) routine maintenance, and (c) any unavailability caused by circumstances of force majeure described in section 17.6. Certain enhancements to the Drop Platform made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to or features of the Drop Platform may require the payment of additional fees, and Drop will determine at its sole discretion whether access to any other such new enhancements will require an additional fee.
- Support. Requests for Support Services may be submitted via phone, client access portal or email. Drop will use commercially reasonable efforts to respond to all such requests within one (1) business day. Based on the nature and complexity of Customer’s incident, the first responses Drop provides may differ. In all cases Customer will receive a confirmation from the support team of the receipt and initial review of the request. In many cases, a solution with supporting information will be offered. If, after Drop’s initial review, Customer’s incident requires further information or research for Drop to continue, Drop may request additional details required to resolve the incident, and may provide further information regarding next steps for further research, troubleshooting, or escalation by the Support Services team.
- ANCILLARY SERVICES. Drop shall use commercially reasonable efforts to perform the Ancillary Services. Each SOW or Order Form describing Ancillary Services will include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to this Agreement. If there is any inconsistency between an SOW and this Agreement, the SOW shall control. If either Customer or Drop requests a change to the scope of Ancillary Services, the party seeking the change shall propose such change by written notice. Promptly following the other party’s receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Drop will prepare a change order document describing the agreed changes and any applicable change in fees and expenses (a “Change Order”). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. Drop and Customer shall cooperate to enable Drop to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each SOW or Order Form. In addition, Customer shall perform any Customer obligations specified in each SOW or Order Form. In the event the Ancillary Services are not performed in accordance with the terms of the applicable Order Form or SOW, Customer shall notify Drop in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services by Drop, Customer’s notice shall specify the basis for non-compliance and if Drop agrees with the basis for non-compliance, then at Drop’s sole option, Drop shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service.
THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND DROP’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.
FEES AND PAYMENT.
- Fees. Customer agrees to pay all fees applicable to Drop’s performance of the Services and Customer’s and its Authorized Users’ use of the Drop Platform using one of the payment methods Drop supports. Except as otherwise specified in these Terms or in an Order Form or SOW, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable. Subscriptions are billed on a monthly basis, as described in Customer’s applicable Order Form(s). All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
- Payment. If Customer elects to pay by credit card, Drop or Drop’s third-party payment processor will charge Customer’s payment method on the date that Customer subscribes to use the Drop Platform. By providing a payment method, Customer expressly authorizes Drop and/or Drop’s third-party payment processor to charge the applicable fees to said payment method as well as taxes and other charges incurred thereto. Customer agrees that Drop may invoice Customer for any unpaid fees, including without limitation any amounts owed by Customer that cannot be processed. Customer is responsible for providing complete and accurate billing and contact information to Drop and notifying Drop of any changes to such information. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Drop and notifying Drop of any changes to such information.
IMPORTANT NOTICE – AUTOMATIC RENEWAL: BEGINNING WITH THE FIRST MONTH FOLLOWING THE END OF THE SUBSCRIPTION TERM FOR WHICH CUSTOMER INITIALLY SUBSCRIBES, DROP WILL AUTOMATICALLY RENEW CUSTOMER’S SUBSCRIPTION. EACH RENEWAL PERIOD WILL BE FOR THE TIME PERIOD SET FORTH IN CUSTOMER’S ORDER FORM.
AS AUTHORIZED BY CUSTOMER DURING THE REGISTRATION PROCESS, DROP WILL CHARGE CUSTOMER’S PAYMENT METHOD EACH MONTH WITH THE APPLICABLE MONTHLY SUBSCRIPTION FEE AND ANY SALES OR SIMILAR TAXES THAT MAY BE IMPOSED ON SUCH PAYMENT UNLESS CUSTOMER TERMINATES THE SUBSCRIPTION TERM IN ACCORDANCE WITH THESE TERMS.
DROP RESERVES THE RIGHT TO MODIFY OUR PRICING AT ANY TIME (BUT NOT THE PRICE IN EFFECT FOR CUSTOMER’S THEN-CURRENT SUBSCRIPTION), UPON ADVANCE NOTICE TO CUSTOMER. IF CUSTOMER HAS NOT CANCELLED ITS SUBSCRIPTION WITHIN THE SPECIFIED TIME AFTER RECEIVING NOTICE OF A PRICE CHANGE, CUSTOMER’S SUBSCRIPTION WILL AUTO-RENEW AT THE PRICE INDICATED IN THE NOTICE.
IF CUSTOMER SUBSCRIBES FOR A SUBSCRIPTION THAT INCLUDES A PROMOTIONAL PRICE PERIOD, UNLESS CUSTOMER HAS CANCELLED ITS SUBSCRIPTION PRIOR TO THE EXPIRATION OF THE PROMOTIONAL PERIOD, THE PROMOTIONAL SUBSCRIPTION WILL CONVERT INTO FULL PRICED ANNUAL SUBSCRIPTION AND DROP WILL AUTOMATICALLY CHARGE CUSTOMER FOR THE FIRST MONTHLY SUBSCRIPTION FEE UPON THE EXPIRATION OF THE PROMOTIONAL PERIOD AND EACH SUBSEQUENT MONTH THEREAFTER. THE PRICING FOR SUCH SUBSCRIPTION WILL BE AT THE FULL SUBSCRIPTION PRICE IN EFFECT ON THE DATE CUSTOMER AGREED TO THE PROMOTIONAL PERIOD.
- Overdue Charges. If Drop does not receive fees by the due date, then at Drop’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Suspension of Service. If any amounts owed by Customer for Services are thirty (30) or more days overdue, Drop may, without limiting Drop’s other rights and remedies, suspend its performance of Ancillary Services and Customer’s and its Authorized Users’ access to the Drop Platform until such amounts are paid in full, provided that Drop agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
- Taxes. All fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Drop’s net income).
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
- Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
- Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE DROP PLATFORM, ANCILLARY SERVICES, SUPPORT SERVICES AND THIRD-PARTY OFFERINGS ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF ALL SERVICES AND THIRD-PARTY OFFERINGS IS AT ITS OWN RISK. DROP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY DROP IN SECTION 9 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED BY DROP TO CUSTOMER IS LICENSED AND NOT SOLD.
NO AGENT OF DROP IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF DROP AS SET FORTH HEREIN. DROP DOES NOT WARRANT THAT: (A) THE USE OF THE DROP PLATFORM OR THIRD-PARTY OFFERINGS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE DROP PLATFORM OR THIRD-PARTY OFFERINGS WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE DROP PLATFORM OR THIRD-PARTY OFFERINGS WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE DROP PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DROP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
- General. During the Subscription Term, Drop, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) ****from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) ****alleging that Customer’s use of the Drop Platform as permitted under these Terms infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Drop’s obligations under this Section are conditioned upon (i) Drop being promptly notified in writing of any Third-Party Claim under this Section, (ii) Drop having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) Customer providing all reasonable assistance (at Drop’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Customer settle any such Third-Party Claim without Drop’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to Drop’s right to control the defense and settlement.
- Mitigation. If any claim which Drop is obligated to defend has occurred, or in Drop’s determination is likely to occur, Drop may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Drop Platform, (b) substitute a functionality equivalent, non-infringing replacement for the Drop Platform, (c) modify the Drop Platform to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Drop Platform due to such claim and the remaining days in the then-current Subscription Term.
- Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Drop Platform in combination with any software, hardware, network or system not supplied by Drop where the alleged infringement relates to such combination, (iii) any modification or alteration of the Drop Platform other than by Drop, (iv) Customer’s continued use of the Drop Platform after Drop notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; (vi) Third Party Offerings; and (vii) the Customer System.
- Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF DROP WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE DROP PLATFORM OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF DROP WITH RESPECT THERETO.
- Customer Indemnity. Customer shall defend Drop and its affiliates, licensors and their respective officers, directors and employees (“Drop Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Drop of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Drop Platform other than as permitted under these Terms; or (c) arising from the occurrence of any of the exclusions set forth in Section 10.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Drop providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Drop settle any such Third-Party Claim without Customer’s prior written approval. Drop may, at its own expense, engage separate counsel to advise Drop regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
- Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that Drop’s Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the Drop Platform and materials provided with respect to the Drop Platform. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
- Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
- Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
- Injunctive Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the disclosing party and that, in the event of such breach, such party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
- Drop Platform. As between Drop and Customer, all right, title and interest in the Drop Platform and any other Drop materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Drop Platform, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Drop or Drop’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Drop all evaluations, ideas, feedback and suggestions made by Customer to Drop regarding the Drop Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
- Customer Data. As between Drop and Customer, all right, title and interest in the Customer Data belongs to and is retained solely by Customer. Customer hereby grants to Drop a non-exclusive, royalty-free, perpetual and worldwide license to collect, store, retain, reproduce, analyze, process and otherwise use the Customer Data as necessary for Drop to provide the Services, improve the Services, and develop new services and offerings. To the extent that receipt of the Customer Data requires Drop to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Drop hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in these Terms. As between Drop and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
- Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Drop may monitor Customer’s use of the Services and use data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Drop Platform, its users and the Third-Party Offerings (“Aggregated Statistics”). As between Drop and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Drop. Customer acknowledges that Drop will be compiling Aggregated Statistics based on Customer Data and information input by other customers into the Drop Platform and Customer agrees that Drop may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
- Drop Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Drop, whether solely or jointly, including without limitation, in connection with Drop’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable Order Form or SOW) all Deliverables (“Drop Developments”) and all intellectual property rights therein, shall be the sole and exclusive property of Drop. Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Drop Developments is not, by operation of law or otherwise, vested in Drop, Customer hereby assigns and agrees to assign to Drop all right, title and interest in and to such Drop Developments, including without limitation all the intellectual property rights therein, without the necessity of any further consideration.
- License to Deliverables. Subject to Customer’s compliance with these Terms, Drop hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Drop Platform. Notwithstanding any other provision of this Agreement: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by Drop to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.
- The Telephone Consumer Protection Act (“TCPA”) is a federal law that protects consumer from unwanted solicitation by telephone, fax, and text message. The TCPA prohibits using an “Automatic Telephone Dialing System” to contact a consumer without consent.
Customers Obligations Under TCPA.
Customer is subject to the restrictions of TCPA when Customer contacts Customer Contacts. As such, Customer agrees to:
- Before sending any marketing-related message, obtain express written consent from each Customer Contact receiving the marketing message that the Customer Contact consents to receive text messages related to Customer’s goods and services from an automated system.
- Honor Customer Contact requests to opt-out of future telephone, fax, and text message communications. Drop software provides the ability to honor such requests.
- Not send any messages beyond the scope of the consent Customer receives from its Customer Contacts. Messages unrelated to Customer’s products and services will exceed this scope and potentially subject Customer to liability under TCPA or other relevant laws.
- Informational messages. While Customer is subject to TCPA whenever it uses Drop’s software to contact Customer Contacts, when Customer uses the software to contact Customer Contacts with informational messages (such as appointment reminders), consent to receive such messages does not need to be in writing. It may be oral, electronic, or written. However, it is strongly recommended that Customer obtain consent in either electronic or written form before contacting Customer Contacts. In the unlikely event that a Customer Contact brings suit alleging a violation of TCPA, it will be Customer’s responsibility to prove that such Customer Contact consented to informational messages.
- The CAN-SPAM act sets out the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have Customer stop emailing them, and provides penalties for violations.
Customer’s Obligations Under CAN-SPAM. Customer is subject to the restrictions of CAN-SPAM when Customer contacts Customer Contacts using email to promote a product or service. As such, if Customer uses Drop software to distribute a marketing message, Customer agrees to follow the rules of CAN-SPAM, including without limitation, to:
- Not use false or misleading header information in emails.
- Not use deceptive subject lines in emails.
- Identify the email message as an advertisement.
- Include Customer’s valid physical postal address in all marketing emails.
- Tell recipients how to opt out of receiving future email from Customer.
- Honor opt-out requests promptly.
- Monitor what others are doing on Customer’s behalf. If Customer has another entity handling Customer’s email marketing, Customer is still liable for what such entity send out on Customer’s behalf.
LIMITATION OF LIABILITY.
- No Consequential Damages. NEITHER DROP NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF DROP OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE DROP PLATFORM, THIRD-PARTY OFFERINGS, ANCILLARY SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF. DROP WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
- Limits on Liability. NEITHER DROP NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO DROP DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
- Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
TERM AND TERMINATION.
- Term. The term of these Terms commence on the Effective Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Except as otherwise specified in the applicable Order Form, Subscription Terms shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term. The pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Drop has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.
- Termination for Cause. A party may terminate these Terms and any Order Form upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. Upon any termination for cause by Customer, Drop shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. Upon any termination for cause by Drop, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Drop for the period prior to the effective date of termination.
- Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Drop Platform and Drop's performance of all Support Services and Ancillary Services shall cease; (b) all Order Forms and Statements of Work shall terminate; and (c) all fees and other amounts owed to Drop shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Statement of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. Drop shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
- Survival. This Section and Sections 1, 2.3, 2.4, 5.2, 10, 11, 12, 13, 16.1,16.3, 16.4, and 17 shall survive any termination or expiration of these Terms.
- Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the addresses set forth below (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
- Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be California, United States. Notwithstanding the foregoing, Drop has the right to pursue equitable relief in the state and federal courts located in California, and Customer agrees to the exclusive jurisdiction and venue of such courts. Any disputes arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the parties arising from the parties’ relationship created by these Terms, shall be heard in the state and federal courts located in Los Angeles County, State of California and the parties hereby consent to exclusive jurisdiction and venue in such courts.
- Publicity. Drop my reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Drop business development and marketing efforts, including without limitation Drop’s web site.
- No Solicitation of Employees. Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Drop without Drop’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
- Export. The Drop Platform utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Drop Platform, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Drop Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Drop and its licensors make no representation that the Drop Platform is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Drop Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
- General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Drop. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms, including all applicable Order Forms, and Statements of Work, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.