Terms & Conditions (Sale or Lease)
THESE TERMS AND CONDITIONS (THE "Agreement") CONSTITUTE A BINDING AGREEMENT BETWEEN DRIVEU 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. ORDER; DELIVERY
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.
Leases. 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 Cancellation. 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.
Carrier Fees. 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.
License. Customer shall use the Products solely in accordance with the Documentation. Subject to the terms and conditions of this Agreement, DriveU grants Customer a limited, revocable, non-exclusive, non-assignable, and non-sublicensable license to (as applicable):
install the Software Product on a device or Server owned by Customer (but subject to any volume, Territory, or other limitations specified in the Order), and use the Software Product
during the corresponding license term specified in the Order ("License Term") for Customer's internal business purposes ("Software Product License");
access and use the Software Services (subject to any volume, Territory, or other limitations specified in the Order) during the corresponding subscription term specified in the Order ("Subscription Term") for Customer's internal business purposes ("Software Services Subscription");
use the Product's copy of the Firmware solely as embedded in the Product ("Firmware License"); and/or
make a reasonable number of copies of the applicable Documentation for use with the Product, Software Product and/or Software Services, as the case may be ("Documentation License").
(the Software Product License, Software Services Subscription, Firmware License, and Documentation License collectively, the "License"). Any rights not expressly granted in this Agreement are hereby reserved by DriveU and its licensors, and, except for the License, no Intellectual Property Rights are granted to Customer, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise.
Assignment of Firmware License. Customer may assign the Firmware License, and only if Customer meets all of the following conditions: (a) the assignment is of the Firmware License as a whole; (b) the assignment is permanent; (c) the assignment is to a party in connection with the transfer of ownership to such party of the Product, and such party has read and agreed to the terms and conditions of this Agreement; and (d) Customer retains no copy (regardless of medium) of the Firmware.
As a condition to the License, Customer shall not (and shall not encourage or permit any third party to) do any of the following (in whole or in part), except as expressly permitted by this Agreement: (a) reproduce or manufacture the Product, Software or Documentation; (b) sell, assign, transfer, lease, rent, sublicense, distribute, publicly perform, display or communicate, offer as part of a time-sharing, outsourcing or service bureau environment, or otherwise make commercially available, the Product, Software or Documentation; (c) modify, alter, adapt, arrange, or translate the Product, Software or Documentation; (d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non -public APIs, ideas, or algorithms) or internal composition of, the Product, Software or Documentation; (e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Product, Software or Documentation; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Product, Software or Documentation; (g) make a derivative work of the Product, Software or Documentation, or use them to develop any service or product that is the same as (or substantially similar to) them; (h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Product, Software or Documentation; (i) use the Product, Software or Documentation to infringe, misappropriate, or violate any third party's Intellectual Property Rights, or any applicable Law, or to otherwise engage in any fraudulent activity; or (j) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Product, Software or Documentation without first sending the results and related study(ies) to DriveU, and obtaining DriveU’s written approval of the assumptions, methodologies and other parameters of the testing or study.
To the extent Customer is given the right, under any Law applicable to Customer, to receive information and/or materials for purposes of making any portion of the Software interoperable with other software, and such information and materials are not contained within any Documentation, Customer agrees that it shall request from DriveU (in a detailed writing) access to such information and/or materials, and if DriveU accepts such request, DriveU may (in its sole discretion) impose additional conditions on such access and use.
SUPPORT SERVICES; PROFESSIONAL SERVICES
Support Services. Customer may at any time purchase from DriveU technical support services for certain purchased Products and/or Software Products ("Support Services") pursuant to certain various support packages offered by DriveU and their respective then-current rates (" Support Packages"). Customer's purchase order for the Support Services (if accepted by DriveU) shall be deemed incorporated into, and made a part of, this Agreement by reference. Support Services may be provided by DriveU and/or its third-party service providers. Any support services for Products or Software Products obtained from an authorized reseller of DriveU, shall be provided by such reseller solely pursuant to Customer's applicable agreement with such reseller.
Exceptions. DriveU shall have no obligation to provide Support Services in connection with any of the following: (a) altered or modified DriveU Materials; (b) DriveU Materials that are not the current version;
problems to DriveU Materials caused by Customer’s (or third party's) misuse, negligence, hardware malfunction, or modification thereof, or other causes beyond the control of DriveU; and/or (d) DriveU Materials that have been installed or are being used in a way that is inconsistent with DriveU's written instructions or Documentation, or otherwise in breach of this Agreement. If Customer has directly purchased third party equipment (such as Servers) for use with a Software Product, such third party equipment must meet DriveU specifications in order to ensure proper performance of the Software Products, and in order for Customer to receive Support Services for such Software Product. For the avoidance of doubt, in no event do the Support Services cover such third-party equipment itself. In addition, if it is found that an error which was reported to DriveU under Support Services is not an error that materially degrades the use of the Product, Software Product, or Software Services (as applicable), DriveU will have the right to charge Customer for the time spent in handling and diagnosing the matter, at its then-current standard hourly rates.
Any request for services in connection with any of the foregoing subparagraphs (a) through (d) inclusive shall be deemed a request of Professional Services (defined below). Furthermore, the following services are not within the scope of Support Services and shall be deemed Professional Services: (i) the installation of an "Upgrade", which means any new generally available (GA) release of a Software Product or Software Services that includes significant new features, functionality, and/or enhancements, and which is typically indicated by a number to the left of the decimal point (e.g. Version 4.0 is an Upgrade from Version 3.3); (ii) the development and supply of special or user-specific developments;
the integration of Products, Software Products, and/or Software Services with third-party hardware or software; and/or (iv) training with respect to use of any Products, Software Products, and/or Software Services.
Professional Services. In the event Customer wishes to receive implementation, configuration, customization, integration, or other professional services under this Agreement ("Professional Services"), such Professional Services (including any corresponding statement of work or similar ordering document) shall be subject to the terms and conditions of this Agreement, and be deemed incorporated into and made a part of this Agreement by reference.
As between the Parties, DriveU is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the DriveU Materials; and (b) any Enhancements to any DriveU Materials, regardless of authorship or inventorship. To the extent any Intellectual Property Rights in and to any Enhancements to DriveU Materials do not automatically vest in DriveU, Customer hereby irrevocably assigns (and agrees to assign) to DriveU (or its designee) such Intellectual Property Rights. Furthermore, Customer recognizes and agrees that, without limitation, all internal hardware, software, and functionality not readily visible from external view of the Product constitute trade secrets belonging to DriveU and/or its licensors, and that efforts to determine such internal hardware, software or functionality may constitute misappropriation of trade secrets. If Customer provides any suggestions or similar feedback to DriveU or its Affiliates concerning any DriveU Materials ("Feedback"), Customer hereby grants to each of DriveU and its Affiliates a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide, sublicensable (through multiple tiers), assignable license to use, reproduce, make (and have made), import, disclose, distribute, create derivative works of, modify, adapt, and otherwise commercially exploit such Feedback without restriction or obligation.
Unless expressly specified otherwise in the Order: (a) DriveU may invoice Customer following execution of the Order; (b) payment shall be made by Customer within thirty (30) days from the date of invoice;
amounts are quoted, and shall be paid, in United Stated dollars (US$), and payment shall be made by wire transfer to the bank account set forth in the Order; (d) payments are non-refundable, non-cancellable, and without any right of set-off; (e) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month, and the highest amount permitted by applicable law; and (f) the prices therein are exclusive of freight, insurance, all applicable taxes (such as VAT and GST), customs, duties and other shipping expenses and charges (except for taxes based on DriveU's net income), and all the foregoing shall be solely borne by Customer. To the extent an Order contains any credit terms, DriveU reserves the right to change such credit terms upon written notice at any time at its sole discretion.
If Customer is required by Law to make any deduction or to withhold from any sum payable to DriveU, then the sum payable by DriveU, upon which the deduction or withholding is based, shall be increased to the extent necessary to ensure that, after all deduction and withholding, DriveU receives and retains, free from liability for any deduction or withholding, a net amount equal to the amount DriveU would have received and retained in the absence of the required deduction or withholding.
Limited Warranty. DriveU warrants that during the applicable Warranty Period (defined below):
the Product shall be free from material defects in materials and workmanship, subject to normal and intended use and service (the "Product Warranty"); and
the Software Product shall, in all material respects, perform the functions described in the applicable Documentation (the "Software Warranty").
In the event of any Product Warranty and/or Software Warranty breach within the Warranty Period (each, a " Defective Item"), and provided Customer has notified DriveU via email (to the email addresses specified below) of the defect promptly after discovery thereof, DriveU shall first determine whether the defect can be resolved via any Support Services (to the extent Customer has an existing Support Package), and Customer shall fully cooperate with DriveU in such efforts. If there is no existing Support Package, or if DriveU determines that Support Services cannot resolve the defect, DriveU shall (at its sole option, and at no additional charge):
repair the Defective Item (or part thereof) or replace the Defective Item (or part thereof) with new or refurbished Products (or parts) or Software Products, as the case may be; or
in the event the Defective Item is a Product, terminate this Agreement, and (A) if it has been purchased, refund the purchase price paid for such Product, less one-thirty-sixth (1/36) thereof for each month that Customer made use of the Product, or (B) if it has been leased, refund the lease fees for any period for which Customer prepaid in advance but did not make use of the Product because of such defect.
The foregoing (i) and (ii) represents Customer's sole and exclusive remedy, and DriveU's sole and exclusive liability, for any breach of the Product Warranty or Software Warranty. In the event DriveU repairs or replaces a Defective Item pursuant to this Section, the Product Warranty or Software Warranty (as applicable) shall remain in force for the remainder of the original warranty period, as then in effect.
Warranty Period. Unless the Order specifies a different warranty period, the "Warranty Period" shall be as follows: (a) for a Product, twelve (12) months commencing upon the date of activation of the Product by DriveU; or (b) for a Software Product, ninety (90) days commencing upon the date of activation of the Software Product by DriveU.
Warranty Returns for Products. Defective Products will be returned to DriveU FOB (Incoterms 2010) DriveU's shipping location, shipping charges prepaid. Title to any returned defective Products will pass to DriveU upon receipt. No returns will be made without Customer first obtaining a Return Material Authorization (RMA) ticket and number ("RMA Ticket") from DriveU. Defective Products returned to DriveU without an RMA Ticket will be returned unopened, at Customer's sole risk, cost and expense, or otherwise discarded. When requesting an RMA Ticket, Customer shall provide the following information: (a) a detailed description of the nature of the defect, and the reason for the return; (b) model and serial number for each unit to be returned, and (c) applicable DriveU invoice number and date. The RMA Ticket information (as well as other information and markings instructed by DriveU) shall be marked on the parcel, which Customer shall package in its original packaging, unless permitted otherwise in writing by DriveU, in which case Customer shall package it to reasonably accepted commercial standards for electronic equipment. DriveU will pay shipping charges for delivery of repaired or replaced Products back to Customer, provided that if DriveU reasonably deems, in its sole discretion, that the returned defective Product was not covered by the Product Warranty or was subject to a Warranty Exclusion (defined below), Customer will pay all return shipping charges.
Warranty Service Exclusions. Each of the Product Warranty and Software Warranty excludes, and DriveU shall have no responsibility or liability hereunder to support, service or respond to, any and all of the following (each, a "Warranty Exclusion"): (a) Products or Software Products that have been altered, reconfigured or modified by Customer or any third party other than DriveU’s authorized customer support personnel; (b) Products or Software Products not installed by DriveU’s authorized customer support personnel; (c) failure by Customer to promptly implement a Firmware Update and/or comply with a Replacement Notice, as required by this Agreement; or (d) defects or other damage caused by negligence, abuse, neglect, or use other than as specified in the Documentation, or by natural disasters or other factors beyond the reasonable control of DriveU. Any services provided by DriveU in connection with the foregoing shall be charged at DriveU's then-current rates. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, under no circumstances shall DriveU be liable for any loss or theft of any Product following delivery to Customer (except that if Customer has leased a Product and the Lease Period is still in effect, Customer may obtain a replacement Product in such event, upon payment of the applicable Replacement Fee).
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL DRIVEU MATERIALS ARE DELIVERED TO CUSTOMER "AS IS", WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY DRIVEU AND ITS LICENSORS AND SUPPLIERS.
IN ADDITION: (i) NEITHER DRIVEU NOR ITS LICENSORS OR SUPPLIERS MAKE ANY
REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF ANY OF THE DRIVEU MATERIALS; (B) THAT CUSTOMER'S USE OF, OR RELIANCE UPON, ANY OF THE DRIVEU MATERIALS WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (C) THAT ANY OF THE DRIVEU MATERIALS WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, OR OTHER GOVERNMENT OR INDUSTRY REGULATIONS OR STANDARDS; and (ii) CUSTOMER ACKNOWLEDGES AND AGREES THAT DRIVEU IS NOT RESPONSIBLE AND CANNOT CONTROL THE OPERATION OF ANY CELLULAR NETWORK(S) OR THE PASSING OF OR TRANSMISSION OF INFORMATION VIA ANY NETWORKS, AND THAT NEITHER PRODUCTS NOR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY DRIVEU ARE FAULT-TOLERANT OR DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, AND DRIVEU EXPRESSLY DISCLAIMS ANY LIABILITY OR EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USE.
Some jurisdictions' Laws do not allow the disclaimer of certain implied warranties or conditions, and to the extent applicable to Customer, then, at DriveU's option, such disclaimers shall either not apply, or DriveU limits the duration of such warranties and conditions to the shortest duration (from date of delivery of the Product or Software Product) permitted by such jurisdictions' Laws.
LIMITATION OF LIABILITY
IN NO EVENT WILL DRIVEU, ITS AFFILIATES, OR ANY LICENSOR OR SUPPLIER OF DRIVEU, BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES, OR OTHER COST OF COVER. FURTHERMORE, DRIVEU SHALL HAVE NO LIABILITY WHATSOEVER UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, INCLUDING THIRD PARTY CLAIMS RELATING TO THIS AGREEMENT, FOR ANY DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, DIRECT DAMAGES AND LOSSES) IN THE EVENT THAT CUSTOMER FAILS TO PROMPTLY IMPLEMENT A FIRMWARE UPDATE AND/OR COMPLY WITH A REPLACEMENT NOTICE.
THE COMBINED AGGREGATE LIABILITY OF DRIVEU AND ANY DRIVEU AFFILIATE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE FOLLOWING: (A) TO THE EXTENT LIABILITY RELATES TO PROFESSIONAL SERVICES, THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR SUCH PROFESSIONAL SERVICES; (B) TO THE EXTENT LIABILITY RELATES TO SUPPORT SERVICES, THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR SUCH SUPPORT SERVICES; AND (C) FOR ANY OTHER LIABILITY, THE LOWER OF (i) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO DRIVEU UNDER THE ORDER, OR (ii) THE AMOUNT ACTUALLY PAID BY CUSTOMER TO DRIVEU WITHIN THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF DRIVEU HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS;
EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND
REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, WHETHER BREACH OF CONTRACT, TORT (INCLUDING NEGLGIENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE
Some jurisdictions' Laws do not allow the exclusion or limitation of incidental or consequential damages, or of other damages, and to the extent applicable to Customer, such exclusions and limitations shall not apply.
Each Party (the "Recipient") may have access to certain non-public or proprietary information and materials of the other Party (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). As between the Parties, all Confidential Information and derivatives thereof (as well as any Intellectual Property Rights therein/to) are and shall remain the sole and exclusive property of the Discloser. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient's possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser's Confidential Information to any third party, except to its employees, advisers, Partners and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser's Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser's Confidential Information solely for the purpose of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law or judicial or governmental order, the Recipient will (i) promptly notify Discloser in writing of such Law or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to extent required by such Law or order (as the case may be). Customer acknowledges that unauthorized disclosure or use of DriveU's Confidential Information will cause irreparable harm and significant injury to DriveU that may be difficult to ascertain; accordingly, Customer agrees that DriveU, without prejudice to any other right or remedy that it may have available to it at law or in equity, will have the right to seek and obtain immediate equitable relief to enforce the rights and obligations contained herein, without the necessity of proving actual damages, posting bond, or making any undertaking in connection therewith.
Each Party may terminate this Agreement if the other Party fails to perform any material obligation under this Agreement (including without limitation any payment obligation), and such failure (if capable of remedy) remains uncured for more than thirty (30) days after receipt of written notice thereof. Termination of this Agreement shall not affect any rights or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) except for a purchased Product, Customer shall (as directed) return and/or permanently delete all DriveU Materials and certify compliance therewith in writing; (b) except for the Firmware License under a purchased Product and the corresponding Documentation License, the License shall automatically terminate and be deemed revoked, and Customer shall cease all use thereof; and (c) Sections DEFINITIONS AND INTERPRETATION, INTELLECTUAL PROPERTY, LIMITED WARRANTY, WARRANTY DISCLAIMER, LIMITATION OF LIABILITY, CONFIDENTIALITY, TERMINATION, GOVERNING LAW AND DISPUTE RESOLUTION and MISCELLANEOUS shall survive, as shall any provision that ought by its nature to survive.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement (including its validity) shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.
Any claim, dispute or controversy under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv -Jaffa, Israel, and Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue.
Notwithstanding the foregoing, DriveU reserves the right to seek equitable relief in any court worldwide of competent jurisdiction. Furthermore, Customer:
agrees that any proceedings to resolve or litigate any claim, dispute or controversy will be conducted solely on an individual basis (and not in any class action or class-wide proceeding), and that Customer may initiate such proceedings only on its own behalf;
hereby irrevocably and unconditionally waives the right to litigate such claims, disputes, or controversies in court before a jury; and
agrees not to participate in claims, disputes, or controversies brought in an attorney general or representative capacity, or in consolidated claims, disputes, or controversies involving another person's claim, dispute, or controversy.
Entire Agreement. Except in the case of an Existing Agreement (as described in the introduction to this Agreement), this Agreement represents the entire agreement between DriveU and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between DriveU and Customer with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement; for example, statements and explanations in any FAQs or other marketing material on the DriveU website are for convenience only, and are not binding on DriveU. Any amendment to this Agreement must be in writing signed by an authorized representative of each Party. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any Law applicable to Customer requiring that the Agreement be localized to meet Customer's language, as well as any other localization requirements. Customer shall look only to DriveU (i.e., the DriveU entity that has accepted the Order and entered into this Agreement with Customer), for the performance of any obligations on the part of DriveU, and under no circumstances shall any other DriveU entity be responsible or liable for the obligations of DriveU.
Assignment. DriveU may assign this Agreement (or any of its rights and obligations hereunder), without restriction or further obligation. This Agreement is personal to Customer, and Customer shall not assign this Agreement (or any of its obligations or rights thereunder) without DriveU's express prior written consent. Any prohibited assignment shall be null and void. Subject to the foregoing, this Agreement binds and benefits each Party and its respective successors and assigns. At DriveU's sole discretion, any DriveU obligation hereunder may be performed (in whole or in part), and any DriveU right or remedy may be exercised (in whole or in part), by an DriveU Affiliate.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
Remedies. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
Reference Customer. DriveU may use Customer's name and logo on DriveU's website and in its promotional materials to indicate that Customer is a customer of DriveU.
Waiver. No failure or delay on the part of any Party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by DriveU, the writing must be duly signed by an authorized representative of DriveU), and shall be valid only in the specific instance in which given.
Relationship. The relationship of the Parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the Parties.
Notices. All notices or other communications provided for in this Agreement shall be in writing and shall be given in person, by courier, by facsimile, electronic mail or by registered or certified mail, postage prepaid, addressed as set forth in the Order. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day) and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by electronic mail shall be deemed received upon receipt of such electronic mail message.
No Third-Party Beneficiaries. Except as expressly stated otherwise herein, there shall be no third-party beneficiaries of or under this Agreement.
Export Compliance. Customer shall not transfer, export, re-export, import, re-import or divert any DriveU Materials or other technical data in violation of any Export Control Laws, as well as any applicable import and use restrictions, all as then in effect, and shall not transfer, export, re-export, import, re-import or divert any DriveU Materials to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by DriveU from time to time). In the event Customer breaches the foregoing sentence (in whole or in part), it shall indemnify and hold harmless DriveU for any fine or penalty imposed upon DriveU and/or its Affiliates (as well as their respective personnel) as a result of such breach.
Force Majeure. Except for payment obligations, neither Party shall be responsible for any failure or delay to perform any obligation hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes or concerted labor action, work stoppage, or shortages of materials, equipment or facilities, and/or (d) other similar cause beyond such Party's reasonable control. For the avoidance of doubt, any problems relating to the hosting of any Software Services shall not be deemed within DriveU's reasonable control.
Wireless and Software Services. WITH RESPECT TO SOFTWARE SERVICES, AS WELL AS WIRELESS SERVICES (WHEN DELIVERED WITH A PRODUCT), PROVIDED OR OPERATED BY THIRD PARTY SERVICE PROVIDERS (SUCH AS THIRD PARTY NETWORK OPERATORS, CARRIERS, AND CLOUD HOSTING PROVIDERS), CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS, AND THAT CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEENDRIVEU AND THE UNDERLYING SERVICE PROVIDER. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING SERVICE PROVIDER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER, AND CUSTOMER HEREBY IRREVOCABLY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR OR IN CONNECTION THEREWITH. CHANGES TO AVAILABILITY (INCLUDING AVAILABILITY IN ANY PARTICULAR COUNTRY), RATE INCREASES, AND CHANGES TO TERMS AND CONDITIONS MADE BY SUCH SERVICE PROVIDER(S) MAY BE FLOWED DOWN AND APPLIED BY DRIVEU TO CUSTOMER, BACK-TO-BACK, WITH PRIOR WRITTEN NOTICE.
US Government Users. If Customer is an agency or instrumentality of the United States Government, Customer agrees that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively; that DriveU’s rights therein are subject to this Agreement, pursuant to FAR 12.212 and/or DFARS 227.7202 -1 and 227.7202-3, as applicable, or successor regulations; and that Customer’s rights shall apply only to the specific agency and program for which the Software and Documentation are obtained.
Counterparts. The Order may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
Terms & Conditions (Rental)
These DriveU Standard Terms and Conditions (the “Agreement”) set forth the terms and conditions governing (a) Customer's rental of Hardware Materials from DriveU; and (b) DriveU's performance of Support Services, in each case as may be specified in a Purchase Order (all the foregoing capitalized terms defined below). This Agreement constitutes an integral part of the Purchase Order. No provisions of any Customer order form, acknowledgment or other business form that Customer may use will have any effect on the rights and obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of DriveU to object to such provisions, and such provisions are hereby rejected by the parties. DriveU’s acceptance of any Purchase Order is expressly made conditional upon Customer’s acceptance of the terms and conditions set forth herein without modification or addition. DriveU shall not be deemed to have accepted any terms or conditions in a Purchase Order based on a prior course of dealing.
DriveU reserves the right to modify this Agreement at any time by posting the modified Agreement on our website (or any successor domain). Such modifications will be effective ten (10) days after such posting, and any outstanding Purchase Orders in effect on such date shall be subject to the modified Agreement and Customer agrees to be bound thereby.
“Customer” means the customer whose name appears on the Purchase Order.
“Device” means each hardware device on which the Software may be installed, including without limitation any Hardware furnished by DriveU.
“Effective Date” means the date of execution of the Purchase Order.
“Hardware Materials” means the DriveU Products and related accessories (such as SIM cards) listed under a Purchase Order.
“DriveU” means the DriveU entity whose name appears on the Purchase Order, which entity shall be either DriveU Ltd. or DriveU, Inc.
“DriveU Products” means, collectively, DriveU products, including their respective documentation and embedded software components.
“Purchase Order” means the ordering document or written communication (such as email) which is used to order a rental of Hardware Materials and/or Support Services under this Agreement, and which has been expressly approved by the parties.
“Support Services” means those support services (if any) detailed in the DriveU quote.
“Territory” means the territory specified in the Purchase Order.
Customer may rent Hardware Materials from DriveU, as mutually agreed in a Purchase Order. Delivery of the Hardware Materials to Customer shall be in accordance with the delivery terms set forth in the Purchase Order and may include delivery via DriveU's local distributor (to the extent Customer has a relationship with such distributor), and Customer shall fully cooperate with DriveU in connection with such delivery. Subject to such cooperation, DriveU shall make commercially reasonable efforts to adhere to any quoted delivery dates in the Purchase Order, but shall not be liable for any direct or indirect damage or loss that the Customer may incur as a result of a delay. In the event Customer cancels the Purchase Order prior to the quoted delivery date stated in the Purchase Order, Customer shall pay DriveU the cancellation fee set of three month rental.
Subject to Customer's commitment of payment of the applicable rental fees stated in the Purchase Order ("Rental Fees"), Customer shall have the right to use such Hardware Materials in the Territory in accordance with the terms hereof for the rental period specified in the applicable Purchase Order (the “Rental Period”). For the avoidance of doubt, the accompanying documentation and embedded software components are only licensed to Customer (in object code only) for the period of the Rental Period, and on a non-exclusive basis for use solely as embedded in the Hardware Materials. [Upon expiration of the
Rental Period, Customer shall immediately return the Hardware Materials to DriveU (or the designated collection point) in the same condition in which they were provided to Customer by DriveU, less reasonable wear and tear. In the event any loss, theft, or damage, Customer shall be responsible for such loss, theft or damage and shall pay DriveU as follows: in the case of loss or theft, the full replacement fee per the then-current DriveU Product price list (the “Replacement Fee”), and in the case of damage, the costs to repair such damage, as determined by DriveU (the “Repair Fee”). No loss, theft or damage shall relieve Customer of the obligation to pay Rental Fees. Customer shall notify DriveU in writing within two (2) 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 receiving an invoice from DriveU for such fees. In the case of repairs, Customer shall bear the costs of shipment of the damaged unit to DriveU and return shipment of the repaired unit. If the Rental Period is still in effect when the lost, stolen or damaged Hardware Materials are received by DriveU, DriveU shall make commercially reasonable efforts to provide a replacement unit for the remainder of the Rental Period. In the event the Hardware Materials are returned late (whether in whole or in part), Customer shall pay DriveU a late fee equal to Five Hundred US Dollars ( $500) per day, which Customer agrees to pay within thirty (30) days after receiving an invoice from DriveU therefor.
Customer shall not remove, alter, or deface any of the trademarks, trade names, logos, patent or copyright notices or markings, or other proprietary legends on or in, or add any other notices, markings, or legends to, the Hardware Materials.
DriveU Product Restrictions. Customer may not, directly or indirectly (i) sell, assign, lease, rent, distribute, market, sublicense, or otherwise transfer any Hardware Materials; (ii) modify, adapt, translate, or create derivative works of, reverse engineer, decompile, disassemble, or derive or attempt to derive the source code or underlying algorithms or ideas of any Hardware Materials by any means, except and only to the extent, that such activity is required to be permitted by applicable law notwithstanding this limitation and is not subject to contractual waiver; or (iii) use any Hardware Materials in a time-sharing or service bureau arrangement, or in any unlawful manner.
Export. Customer agrees to use the Hardware Materials in compliance with all laws and regulations applicable to Customer. Without limiting the generality of the foregoing sentence, Customer shall not use or otherwise export or re-export any Hardware Materials (or part thereof) in violation of any Export Control Laws. "Export Control Laws" means all export and re-export control laws, regulations and rules applicable to Customer, as well as Israeli export control laws, regulations and rules, and the United States' 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, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State. Customer will provide DriveU with copies of any export registrations and filings with the United States or Israeli government. The Territory excludes any countries where access and/or use is prohibited by U.S. or Israeli law.
Fees and Payment Terms.
The Rental Fees will be invoiced and paid in accordance with the payment terms and in the currency set out in the Purchase Order. Unless the Purchase Order expressly provides otherwise, payments are non-refundable, non-cancellable, and are without any right of set-off.
Overdue payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. In the event of late payment, Customer will also be responsible for all costs associated with collecting the outstanding amounts, including reasonable attorney's fees.
All prices set forth herein and in any Purchase Order are exclusive of all duties and taxes, such as, without limitation, sales, use, excise or value added taxes and withholding taxes, and other government assessments (collectively, “Taxes”), and Customer shall be responsible for all Taxes (except Taxes on DriveU's net income). The prices represent the net amounts to be retained by DriveU free of any liability for withholding or deduction, and shall, if applicable, be grossed-up accordingly.
As between the parties, DriveU is and shall remain the sole and exclusive owner of all title and intellectual property rights in and to the Hardware Materials, as well as any updates, modifications, customizations, enhancements, or other derivatives thereof. Customer acknowledges and agrees that the underlying algorithms, ideas, structure, sequence and organization of the software components of the DriveU Product (other than their open source components) are the valuable trade secrets of DriveU and/or its licensors.
As between the parties, DriveU shall be the sole and exclusive owner of all title and intellectual property rights in and to any Feedback provided to DriveU and derivative works thereof. To the extent any such intellectual property rights do not automatically vest in DriveU, Customer hereby assigns and agrees to assign (and to procure from its personnel the assignment of) such intellectual property rights to DriveU, and Customer shall execute such further instruments reasonably requested by DriveU to perfect DriveU's ownership of such intellectual property rights. Customer shall not disclose to any third party, or otherwise publish, any Feedback. " Feedback" means ideas, suggestions, or similar feedback about performance of any Hardware Materials and/or for improving same. Customer hereby represents and warrants that Feedback will not infringe, misappropriate or violate any third party's intellectual property rights.
Third Party Components. The Hardware Materials use third party hardware and software components, including open source software (“Third Party Components”). Third Party Components are delivered by DriveU as-is, and the terms and conditions associated with such components (which Customer acknowledges it shall be bound by) are provided with the Third Party Components, posted online and/or otherwise supplied as required, and to the extent of any conflict between such terms and conditions and this Agreement, the former shall govern with respect to the Third Party Component. Any covenants, representations, warranties, guarantees, conditions, indemnities or other commitments made by DriveU under this Agreement concerning the Hardware Materials (if any), are made by DriveU and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Components. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, DriveU does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Components.
Confidentiality . Each of DriveU and Customer (the "Recipient") may have access under this Agreement to certain non-public or proprietary information or materials of the other party (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). Without derogating from any other obligation in this Agreement, Customer will treat Hardware Materials as DriveU's Confidential Information. Confidential Information will not include information or material which Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to Recipient hereunder; (b) became part of the public domain after disclosure by Discloser to Recipient hereunder, through no fault of Recipient; (c) was in the Recipient's possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser's Confidential Information.
Recipient will use the Discloser's Confidential Information solely for the purpose of Recipient performing its obligations and/or exercising its rights under this Agreement. Recipient will not disclose or make available the Discloser's Confidential Information to any third party, except to its employees and agents that have a need to know such information and that are bound by obligations at least as protective as provided herein. Each party acknowledges that in the event of a breach or threatened breach of this Section (Confidentiality) by the other party, the non-breaching party may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section (Confidentiality) without the need to post a bond.
Term and Termination.
This Agreement commences on the Effective Date and will remain in full force and effect until expiration of the Rental Period, unless terminated by either Party in accordance herewith (the "Term").
Either party may terminate this Agreement if the other party fails to perform any material obligation hereunder.
Upon any termination or expiration of this Agreement:
The Purchase Order shall terminate;
Customer shall immediately return all Hardware Materials to DriveU in accordance with Section 2.22 (Hardware Rentals) above;
Each party shall promptly return to the other party all Confidential Information of such other party in its possession, or if so requested by such other party, destroy or permanently delete the Confidential Information and certify to the other party that it has done so; and
Termination or expiration of this Agreement shall not affect any right or liability accrued by either party as of the effective date of termination or expiration. Any provision in this Agreement that is stated to survive termination, shall survive, as will Section 6 (Ownership) and Sections 8 (Confidentiality) through 21 (Force Majeure).
Disclaimer of Warranties. THE HARDWARE MATERIALS (INCLUDING WITHOUT LIMITATION ALL SOFTWARE AND DOCUMENTATION), AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY DRIVEU, ARE PROVIDED AND MADE AVAILABLE TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITH ALL FAULTS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY DRIVEU AND ITS SUPPLIERS.
WITHOUT DEROGATING FROM THE ABOVE, CUSTOMER ACKNOWLEDGES AND AGREES THAT DRIVEU IS NOT RESPONSIBLE AND CANNOT CONTROL THE OPERATION OF ANY CELLULAR NETWORK(S) OR THE PASSING OF OR TRANSMISSION OF INFORMATION VIA ANY NETWORKS. NEITHER THE HARDWARE MATERIALS NOR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY DRIVEU ARE FAULT-TOLERANT OR DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, AND DRIVEU EXPRESSLY DISCLAIMS ANY LIABILITY OR EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USE.
Limitation of Liability
IN NO EVENT SHALL DRIVEU, ITS AFFILIATES, OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES;
ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR
THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
THE COMBINED AGGREGATE LIABILITY OF DRIVEU AND ALL ITS AFFILIATESUNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE RENTAL FEES PAID BY THE CUSTOMER UNDER THE PURCHASE ORDER TO WHICH THE LIABILITY RELATES IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) EVEN IF DRIVEU OR ONE OF ITS AFFILIATES HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).
Governing Law and Jurisdiction. If Customer has entered into a Purchase Order with DriveU Ltd., this Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to its rules of conflict of laws, and Customer and DriveU hereby consent to exclusive jurisdiction and venue in any and all disputes or claims hereunder in the competent courts located in Tel Aviv-Jaffa, Israel. If Customer has entered into a Purchase Order with DriveU Inc., this Agreement shall be governed by the laws of the State of New Jersey and controlling U.S. federal law, without regard to rules of conflict of laws, and Customer and DriveU hereby consent to the exclusive jurisdiction and venue, over any and all disputes or claims hereunder, in the competent courts located in New Jersey. The United Nations Convention on Contracts for the International Sale of Goods shall not apply and is hereby disclaimed. Notwithstanding the foregoing, DriveU shall be entitled to seek equitable relief in any court worldwide that has competent jurisdiction.
Entire Agreement. This Agreement together with the Purchase Order represents the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. For the avoidance of doubt, this Agreement and the Purchase Order shall not be deemed or construed to derogate from, or add to, any other agreement in effect between the parties as of the Effective Date, which agreement shall continue in full force and effect subject to its terms.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
US Government Users. If Customer is an agency or instrumentality of the United States Government, Customer agrees that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively; that DriveU’s rights therein are subject to these Terms, pursuant to FAR 12.212 and/or DFARS 227.7202-1 and 227.7202-3, as applicable, or successor regulations; and that Customer’s rights shall apply only to the specific agency and program for which the Software and Documentation are obtained.
Assignment. DriveU may assign this Agreement (or any of its rights and obligations hereunder) without Customer's consent and without notice. Customer may not assign this Agreement (or any of its rights or obligations hereunder) without DriveU's prior express written consent. Any prohibited assignment shall be null and void.
Wireless Service. IF DRIVEU MAKES THE HARDWARE MATERIALS AVAILABLE WITH A WIRELESS SERVICE, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT CUSTOMER IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN
DRIVEU AND THE UNDERLYING CARRIER. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER, AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFORE. CHANGES TO AVAILABILITY (INCLUDING AVAILABILITY IN ANY PARTICULAR COUNTRY), RATE INCREASES, AND CHANGES TO TERMS AND CONDITIONS MADE BY WIRELESS SERVICE
PROVIDER(S) MAY BE FLOWED DOWN AND APPLIED BY DRIVEU TO CUSTOMER, BACK-TO-BACK, WITH PRIOR WRITTEN NOTICE.
Limit on Responsibility and Liability. Customer shall look only to the DriveU entity that has agreed to the Purchase Order and entered into an agreement with Customer for the performance of any obligations on the part of DriveU, and under no circumstances will any other DriveU entity be responsible or liable for the obligations of the DriveU entity that has accepted and agreed to the Purchase Order and entered into an agreement with Customer.
Relationship. The parties hereto are solely independent contractors, and nothing herein shall be construed as authorizing either party to bind the other in any way or as constituting a party an agent or representative of the other, and no agency, partnership or employment is created by these Terms.
Waiver. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by DriveU, the writing must be duly signed by DriveU), and shall be valid only in the specific instance in which given. Any remedies under this Agreement shall be deemed cumulative of all other remedies available at law or in equity.
Force Majeure. DriveU shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond DriveU's reasonable control.