TERMS & CONDITIONS
SALE AND LEASE
THESE TERMS AND CONDITIONS (THE "Agreement") CONSTITUTE A BINDING AGREEMENT BETWEEN DRIVUE TECH LTD. OR THE DRIVEU ENTITY SPECIFIED IN THE PURCHASE ORDER ("DriveU") AND THE INDIVIDUAL OR ENTITY ("Customer") ISSUING THE CORRESPONDING PURCHASE ORDER OR ORDER FORM TO WHICH THIS AGREEMENT RELATES ("Order"), WHICH ORDER, ONCE ACCEPTED BY DRIVEU (EITHER IN WRITING OR BY SHIPMENT), IS HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT.
DriveU and Customer may be collectively referred to herein as the "Parties", and each individually as a "Party".
IF CUSTOMER HAS AN EXISTING AGREEMENT IN EFFECT WITH A DRIVEU ENTITY FOR THE SUPPLY OF PRODUCTS, SOFTWARE PRODUCTS, AND/OR SOFTWARE SERVICES (EACH AS DEFINED BELOW) (AN "EXISTING AGREEMENT"), THEN THE PARTIES AGREE THAT THE ORDER SHALL BE GOVERNED BY, AND DEEMED INCORPORATED INTO AND MADE A PART OF, THE EXISTING AGREEMENT (AND NOT THIS AGREEMENT), IN WHICH CASE, THE FOLLOWING TERMS AND CONDITIONS SHALL NOT APPLY.
DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms defined in this Section and elsewhere. The Section and sub-Section headings in this Agreement are for convenience of reading only and shall not be used or relied upon for interpretive purposes.
"Affiliate" means, with respect to either Party, any person, organization or entity controlling, controlled by or under common control with, such Party. For purposes of this definition only, “control” of another person, organization or entity will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such person, organization or entity, whether through the ownership of voting securities, by contract or otherwise. Without limiting the foregoing, “control” will be deemed to exist when a person, organization or entity (i) owns more than fifty percent (50%) of the outstanding voting stock or other ownership interest of the other organization or entity, or (ii) possesses, directly or indirectly the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the other organization or entity.
"Documentation" means DriveU's user manuals, data sheets and similar materials that are delivered with the Product.
"Enhancement" means any improvement, derivative work, customization, modification, or enhancement.
"Export Control Laws" means all export and re-export control Laws that apply to DriveU (and/or its Affiliates) and/or to Customer, including without limitation Israeli export control Laws, the Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
"Firmware" means any software embedded within the hardware components of the Product.
"DriveU Materials" means, collectively, the Product, Software, and Documentation.
"Intellectual Property" means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any form and embodied in any media, anywhere in the world. "Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to Intellectual Property, including without limitation patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing. "Laws" means any federal, state and local laws, statutes, ordinances, rules and regulations of any jurisdiction.
"Product" means the DriveU hardware product (and any related accessories) specified in the Order.
"Server" means any physical, virtual, and/or cloud server on which a Software Product may be installed.
"Software" means, collectively, the Firmware, any Software Products, and any Software Services.
"Software Product" means any software product specified in the Order, for delivery on a standalone basis (i.e., separate from any Product).
"Software Services" means any software-as-a-service or similar cloud services specified in the Order.
"Territory" means any usage territory specified in the Order
Subject to payment by Customer, DriveU shall deliver the Products ordered by Customer under the Order (and in the quantities specified therein) pursuant to the terms of this Agreement. Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms of the Order shall be deemed confidential to DriveU, and Customer shall not disclose such terms (in whole or in part) to any third party, except to its directors, officers, and employees who have need to know such terms in order to perform under this Agreement
To the extent that any provision in the Order conflicts with any provision of the main body of this Agreement, the latter shall prevail (unless the Order specifically overrides with specific reference to the conflicting provision). Furthermore, any terms or conditions (whether printed, hyperlinked, or otherwise) in an Order not accepted in writing by DriveU and which purport to modify or supplement this Agreement (or any corresponding quote issued by DriveU), shall be void and of no effect, even if the Order is acknowledged in writing by DriveU. Delivery. DriveU shall make commercially reasonable efforts to meet any delivery date(s) stated in the Order; however, Customer acknowledges that delivery is dependent on third parties outside DriveU's control. Furthermore, and unless expressly stated otherwise in the Order, delivery time is not of the essence. Unless specified otherwise in the Order, delivery of the Products shall be prepaid, and will be made Ex Works (Incoterms 2010) DriveU's designated facility (at which time risk of loss of, or damage to, the Products shall pass to Customer). DriveU shall cooperate with Customer (or its designated freight carrier) to facilitate shipping.
Title and Security Interest
If Customer purchases a Product, title to the Product shall not pass to Customer until all applicable payments to DriveU have been made. Pending such payment, DriveU hereby reserves and maintains, and Customer hereby grants to DriveU, a first priority purchase money security interest in the Product, wherever located, including all replacements and proceeds related thereto or derived therefrom, and Customer agrees to promptly execute any documents reasonably requested by DriveU to confirm, perfect and protect such security interest, and hereby irrevocably authorizes DriveU to execute and file any one or more financing statements (such as pursuant to UCC-1 in the United States) covering all property and proceeds subject to such security interest. For the avoidance of doubt, any copies of Software and Documentation are only licensed (and not sold) pursuant to this Agreement, and no title thereto passes to Customer.
If Customer leases a Product, Customer shall be entitled, subject to Customer's payment of the applicable fees, to use such Product in accordance with the terms hereof for the lease period specified in the applicable Order (the “Lease Period”). Upon expiration of the Lease Period, Customer shall immediately return the Product to DriveU in the same condition in which they were provided to Customer by DriveU, less reasonable wear and tear. In the event the Product is lost, stolen or damaged, then Customer shall be responsible for such loss, theft or damage and shall pay DriveU as follows: (a) in the case of loss or theft, the full replacement fee in an amount equal to DriveU's then-current list price for the Product (the “Replacement Fee”), and in the case of damage, the cost and expense to repair such damage, as determined by DriveU (the “Repair Fee”). No loss, theft, or damage shall relieve Customer of the obligation to pay any fees or other amounts due or that become due or any other obligation hereunder. Customer shall notify DriveU in writing within seven (7) days after any such loss, theft or damage becomes known to Customer, and Customer shall pay the Replacement Fee or Repair Fee, as applicable, to DriveU (as determined by DriveU) within thirty (30) days after such notification. In the case of repairs, Customer shall bear the costs of shipment of the damaged Product to DriveU and return shipment of the repaired Product. If the Lease Period is still in effect when the lost, stolen or damaged Products are received by DriveU and after DriveU has received payment of the Replacement Fee or Repair Fee (as applicable), DriveU shall make commercially reasonable efforts to provide a replacement Product for the remainder of the Lease Period.
DriveU shall have the right to cancel any unfilled Order (or part thereof) without notice to Customer in the event that: (a) a receiver is appointed for the Customer or its property, which appointment is not dismissed within sixty (60) days; (b) the Customer makes a general assignment for the benefit of its creditors; (c) the Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (d) the Customer is liquidating, dissolving or ceasing normal business operations.
Customer acknowledges that use of the Product (whether leased or purchased by Customer) outside the Territory may result in additional carrier fees, including without limitation roaming charges, duties, and other costs, that all such additional carrier fees shall be the responsibility and liability of Customer, and that DriveU shall have no liability to Customer in connection with any such fees. In the event of use outside the Territory, DriveU may invoice Customer for the additional amounts due, and Customer agrees to pay such amounts within fifteen (15) days from the date of such invoice.