DriveU™ Terms and Conditions

Last Updated: 20 July, 2020

These Terms and Conditions (these “Terms”) apply to, and govern, the signed ordering document (such as a Sales Order, Proposal, or Quote) to which they are attached, hyperlinked, or otherwise incorporated (the “Order”). These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this “Agreement”. To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the former shall prevail, unless the Order specifically states otherwise.

The Agreement constitutes a binding agreement between DriveU Tech Ltd. (or the other DriveU entity specified in the Order, if applicable) (“DriveU”) and the customer specified in the Order (“Customer”). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. DriveU and Customer may be collectively referred to herein as the “Parties”, and each individually as a “Party”.

1.              DEFINITIONS AND INTERPRETATION
“DriveU Materials” means, as the case may be, the Hardware, Software, and/or other products specified in the Order.
“Documentation” means any user manuals, data sheets, operational guides, or similar documentation that accompany the DriveU Materials.
“Fees” means the fees and other charges payable by the Customer to DriveU for the Hardware, Software, and/or services, as set out in the Order.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to 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, 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.
“Professional Services” means implementation, configuration, customization, integration, training, consulting, or other professional services.
“Hardware” means the hardware products and/or components specified in the Order (as well as any related Documentation).
“Software” means the software products and/or software services (SaaS) specified in the Order (as well as any related Documentation).
“Support Services” means Software- and/or Hardware-related technical support and maintenance services.

2.              GENERAL
2.1.           Customer PO. If Customer wishes or is required to issue a purchase order to give effect to the Order or in order for an invoice to be paid, then Customer must promptly provide such purchase order to DriveU following the Effective Date (defined below). Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supersede these Terms and/or the Order, shall be void and of no effect.
2.2.           Permitted Scope. The permitted consumption and/or usage scope, volume and other parameters (such as regarding territory, license term or other duration, access, number of users, features, etc.) for the Hardware and Software shall be as set forth in the Order (the “Permitted Scope”). In any event, Customer shall handle, store, and otherwise use DriveU Materials in accordance with the applicable Documentation, as well as all applicable laws and regulations. Customer shall promptly notify DriveU in writing as soon as Customer becomes aware of any access or use in excess of the Permitted Scope, or any other unauthorised access or use of any DriveU Materials. Without limiting the generality of the foregoing, if the Order (or part thereof) is designated for evaluation, trial, pilot, or POC (or a similar designation) purposes (each such case, a “POC”), the Permitted Scope shall also be limited to Customer using the Hardware and Software solely for Customer’s internal purposes of evaluating the potential suitability of the Hardware and Software with Customer’s requirements. 

3.              HARDWARE
3.1.           Delivery. DriveU shall make commercially reasonable efforts to meet the delivery date(s) stated in the Order; however, Customer acknowledges that delivery is dependent on third parties outside DriveU’s control. Unless specified otherwise in the Order, delivery of the Hardware shall be prepaid, and will be made Ex Works (Incoterms 2010) DriveU’s facility. The Customer shall keep Hardware insured against all risks on a comprehensive policy. The Customer shall keep DriveU insured against all liability to other persons for death, personal injury, and damage to or loss of property arising directly or indirectly out of the use, possession or operation of Hardware.
3.2.           Hardware Purchase and Lease. The Order shall specify whether Hardware is purchased or leased by Customer.
3.3.           Title and Security Interest. This Section shall apply to purchased Hardware only: Pending full payment for the Hardware, DriveU hereby reserves and maintains, and Customer hereby grants to DriveU, a first priority purchase money security interest in the Hardware, wherever located, including all replacements and proceeds related thereto or derived therefrom.
3.4.           Lease Terms. This Section shall apply to leased Hardware only: Subject to payment of the applicable Fees therefor, Customer shall be entitled to use such Hardware in accordance with the terms hereof for the lease period specified in the Order (the “Lease Period”). Customer shall ensure that the Hardware remains within its custody and control at all times. Title to the Hardware remains with DriveU at all times. On termination of this Agreement for any reason, or termination of the Lease Period if earlier, Customer shall return (within 30 days of such termination at its expense and in good working order and condition – subject to reasonable wear and tear) the Hardware to DriveU. Until they have been returned or repossessed, Customer shall be solely responsible for the safe keeping, supervision, custody and insurance of such items. In the event that Hardware: (a) is not returned on time, DriveU may charge Customer a late fee (calculated according to DriveU’s then-current lease price list); (b)  is lost or stolen, or cannot be repurposed following return, DriveU may charge Customer a replacement fee (calculated according to DriveU’s then-current price list); and (c) is damaged, DriveU may charge Customer a repair fee (calculated according to DriveU’s then-current rates).
3.5.           Replacement By DriveU. If the Order specifies that the Hardware is an engineering or evaluation sample (or similar designation), DriveU reserves the right (but is not obligated) to replace or modify the Hardware (or parts thereof), and/or send an updated or improved version of its corresponding firmware, at DriveU’s cost and expense. Customer shall fully and promptly cooperate with DriveU’s instructions for implementing such changes.

4.              LICENSE
4.1.           License. Subject to the terms and conditions of this Agreement (including without limitation the Permitted Scope), DriveU grants Customer, during the applicable License Period (defined below), a limited, non-exclusive, non-transferable, and non-sublicensable license (“License”) to:
(a)          in respect of firmware Software, to run the firmware on the corresponding Hardware; and
(b)          for all other Software, to access and use (and, if applicable, install) the Software for Customer’s internal end use.
4.2.           Assignment of License. This Section applies only to Software that is firmware or that is installed within the computer module of a vehicle: Customer may assign the License once, and only if the assignment is to a party in connection with the transfer of ownership to such party of the corresponding Hardware or vehicle (as the case may be), and Customer retains no copy (regardless of medium) of the Software.
4.3.           Reservation of Rights. For the avoidance of doubt, Software (including any copies thereof) is only licensed hereunder, and no title in or to Software (or such copies) passes to Customer. Any rights not expressly granted herein are hereby reserved by DriveU and its licensors, and, except for the License, Customer is granted no other right or license in or to Software, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.

5.              RESTRICTIONS
As a condition to the License, Customer shall not (and shall not encourage or permit any third party to) do any of the following license restrictions (in whole or in part), except as expressly permitted by this Agreement:
(a) reproduce or manufacture DriveU Materials;
(b) except for purchased Hardware, 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, DriveU Materials;
(c) modify, alter, adapt, arrange, or translate DriveU Materials;
(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, DriveU Materials;
(e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in DriveU Materials;
(f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of DriveU Materials;
(g) make a derivative work of DriveU Materials, or use DriveU Materials to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, DriveU Materials;
(h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt DriveU Materials;
(i) use DriveU Materials to violate any third party rights or any applicable law; and/or
(j) use DriveU Materials in connection with any internal performance testing or benchmark studies of which the results are designated or likely to be published in any form or media, or otherwise made available to the public, without DriveU’s prior express written approval, or otherwise disclose or publish such results.

6.              SERVICES
6.1.           Support Services. Subject to payment by Customer of the applicable Fees therefor, DriveU shall provide the Customer with whatever Support Services are specified in the Order.
6.2.           Professional Services. Subject to payment by Customer of the applicable Fees therefor, DriveU shall provide the Customer with whatever Professional Services are specified in the Order. In the event the Parties agree on any additional Professional Services (“Additional Professional Services”), they shall be set out in sequential Statements of Work to this Agreement executed by both Parties (each, an “SOW”), and shall be charged in accordance with such SOWs. If an SOW does not specify charges, the Professional Services will be charged at DriveU’s then-current rates. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and an SOW, the former shall prevail, unless and to the extent that the SOW expressly overrides a provision hereof.
6.3.           General. Support Services and/or Professional Services (in whole or in part) may be subcontracted from time to time to a DriveU-certified third party service provider and/or to a DriveU Affiliate, and DriveU shall remain primarily responsible for their performance.

7.              PAYMENT
7.1.           Fees. Customer shall pay DriveU the Fees specified in the Order.
7.2.           Payment Terms. Unless expressly specified otherwise in the Order: (a) DriveU may invoice Customer following signature of the Order; (b) payment shall be made by Customer within thirty (30) days from invoice date; (c) 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 (or as otherwise instructed); (d) payments and payment obligations are non-refundable, non-cancellable, and without any right of set-off; and (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.
7.3.           Taxes. The prices in the Order 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. 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.

8.              CONFIDENTIALITY
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”). 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 or make available the Discloser’s Confidential Information to any third party (including without limitation by way of publishing), except to its employees, advisers, agents 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 purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.

Notwithstanding anything in this Agreement to the contrary, the pricing and payment terms under the Order are confidential to DriveU, and Customer shall not disclose such Confidential Information to any third party (except its accountants and lawyers), without DriveU’s prior express written consent.

9.              OWNERSHIP
DriveU (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title, and interest (including without limitation all Intellectual Property Rights) in and to: (a) the DriveU Materials; (b) any non-Customer-identifying information, data, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of any DriveU Materials; (c) DriveU’s Confidential Information disclosed or made available hereunder; (d) any suggestions, ideas, or similar feedback of or about any DriveU Materials (collectively, “Feedback”); and (e) any modifications, derivatives, and/or improvements of or to any of the foregoing (regardless of inventorship or authorship). Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by DriveU to ensure and/or provide DriveU (and/or its designee(s), which may include DriveU’s licensors and suppliers) the ownership rights set forth in this paragraph. In respect of non-distributed Software (such as SaaS Software), DriveU shall be entitled, from time to time, to modify and replace the features, functionalities (but not material functionalities, unless it improves the material functionality), and user interface of the Software. 

10.            LIMITED WARRANTY
During the term of this Agreement, DriveU gives Customer the Warranties set forth in Schedule A hereto.

11.            WARRANTY DISCLAIMER.
11.1.        MUTUAL DISCLAIMER. EXCEPT AS MAY BE EXPRESSLY STATED OTHERWISE HEREIN, NEITHER PARTY MAKES 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.
11.2.        DRIVEU MATERIALS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL DRIVEU MATERIALS ARE DELIVERED TO CUSTOMER “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS, AND 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; (D) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (E) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS.
11.3.        ADDITIONAL SAFETY DISCLAIMERS. CUSTOMER SHALL ENSURE THAT ALL PERSONNEL USING OR OPERATING SOFTWARE AND/OR HARDWARE ARE TRAINED IN THE PROPER AND SAFE USE THEREOF, AND TO TAKE ALL OTHER NECESSARY PRECAUTIONS TO ENSURE THE SAFETY OF ANY PERSONS OR PROPERTY (INCLUDING, WITHOUT LIMITATION, ENSURING THAT APPROPRIATE PROTECTIVE GEAR IS USED). 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 HARDWARE NOR SOFTWARE 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.

12.            LIMITATION OF LIABILITY
12.1.        EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY UNDER SECTION ‎8 (CONFIDENTIALITY) AND/OR A PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS: IN NO EVENT SHALL EITHER PARTY, 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, LOSS OF ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
12.2.        EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY UNDER SECTION ‎8 (CONFIDENTIALITY), A PARTY’S BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AND/OR A PARTY’S INDEMNITIES HEREUNDER: THE COMBINED AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO DRIVEU UNDER THE ORDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
12.3.        THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY SUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.  

13.            INDEMNIFICATION
13.1.        By DriveU. DriveU shall: (a) defend Customer against any third party demand or claim made against Customer alleging that Customer’s authorized use of the Hardware or Software in accordance with this Agreement infringes such third party’s copyright or patent (an “Infringement Claim”); and (b) indemnify and hold harmless the Customer for any amounts finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney’s fees) reasonably incurred by Customer under the Infringement Claim. DriveU will have no liability or obligation under this paragraph with respect to any Infringement Claim arising from: (i) a modification to the Hardware or Software not made by DriveU; (ii) the combination of the Hardware or Software with any third party product or service, such as installation of the Software in a vehicle; (iii) DriveU complying with Customer’s instructions, designs, or specifications; and/or (iv) any Customer breach under this Agreement. This Section represents Customer’s sole and exclusive remedy, and DriveU’s sole and exclusive liability, for any Infringement Claims. Furthermore, DriveU’s combined aggregate liability under this Section for any and all Infringement Claims shall not exceed five (5) times the amounts actually paid by Customer to DriveU under this Agreement.
13.2.        By Customer. Customer shall: (a) defend DriveU against any third party demand or claim made against DriveU resulting from Customer’s breach misuse or unauthorized use of any DriveU Materials and/or for any breach of the License or under Section ‎4 (Restrictions) (each, a “Misuse Claim”); and (b) indemnify and hold harmless DriveU for any amounts finally awarded against or imposed upon DriveU by the court (or otherwise agreed in settlement) under the Misuse Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney’s fees) reasonably incurred by DriveU under the Misuse Claim.
13.3.        Procedure. As a condition to such defense and indemnification obligations above, the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (hereinafter, a “Claim”); (B) to cede to the indemnifying Party full control of the defense and settlement of the Claim (except that any non-monetary obligation imposed on the indemnified Party under a settlement shall require its prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.
13.4.        DriveU Efforts. Should the Hardware or Software (in whole or in part) become, or in DriveU’s opinion be likely to become, the subject of an Infringement Claim, then Customer permits DriveU, at DriveU’s option and expense, to either: (a) obtain for Customer the right to continue using the Hardware or Software (or part thereof); or (b) replace or modify the Hardware or Software (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (a) and (b) are not, in DriveU’s opinion, commercially feasible, DriveU may terminate the affected Order immediately upon written notice to Customer, and, following Customer’s return and/or erasure of all DriveU Materials, DriveU shall promptly provide Customer with a pro-rated refund of any prepaid and unutilized Hardware or Software Fees paid by Customer under such Order. 

14.            TERM AND TERMINATION
14.1.        Term. This Agreement shall commence on the date on which the Order is signed by both Parties (the “Effective Date”), and shall automatically terminate upon the expiration of all license terms or other usage periods (each, a “License Period”) specified in the Order.
14.2.        License Period Renewal. In the event the Order specifies a rolling (i.e. non-perpetual) License Period, the License Period shall automatically renew for successive periods of equal length, unless either Party notifies the other Party of its intent to terminate the License Period at least ninety (90) days prior to expiration of the then-current License Period.
14.3.        Termination. 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.
14.4.        Consequences and Survival. Termination of this Agreement shall not affect any rights, remedies, obligations, or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) except for purchased Hardware, Customer shall (as directed) return and/or permanently erase all DriveU Materials and certify compliance therewith in writing; (b) all outstanding Fees shall become immediately due; and (c) the License shall automatically terminate (except for firmware on Hardware that was purchased), and Customer shall cease all access and use of Software. Sections ‎8  (Confidentiality) through ‎15 (Miscellaneous) shall survive termination of this Agreement, as shall any provision that ought by its nature, or that is expressed, to survive. 

15.            MISCELLANEOUS
15.1.        Entire Agreement. This Agreement represents the entire agreement (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 the subject matter hereof.
Amendment. DriveU reserves the right to unilaterally amend these Terms at any time by posting the modified version at https://www.driveu.auto/termsandconditions and such changes will be effective ten (10) days after such posting. In such cases, DriveU will provide notice through a pop-up or banner within the Software, by sending an email or other written notice to Customer, or through other similar mechanisms, and shall updated the “Last Updated” date set forth above. 

15.2.        Governing Law and Jurisdiction. This Agreement will be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed and shall not apply to this Agreement. Any claim, dispute or controversy between the Parties (whether contractual or non-contractual) under, or otherwise in connection with, this Agreement will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts and venue. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO SEEK EQUITABLE RELIEF, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE.
15.3.        Assignment. Neither Party may assign this Agreement (or any of its rights and obligations hereunder), without the prior written consent of the other Party, and any unauthorized assignment shall be null and void; provided, however, that each Party may, upon written notice, assign this Agreement in whole to a corporate subsidiary or affiliate (an “Affiliate”) or to a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assets of the assigning Party. 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 a DriveU Affiliate.
15.4.        Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will 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.
15.5.        Limited Audit. In the event that DriveU’s licensors and/or suppliers of DriveU Materials perform an audit of DriveU’s compliance with its contractual obligations towards such licensors and suppliers, Customer shall fully cooperate with DriveU in providing information and data about this Agreement and performance hereunder.
15.6.        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.
15.7.        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. Customer agrees to reasonably cooperate with DriveU in the creation and promotion of a case-study and an executive testimonials to be used in DriveU’s external communications (such as via its website), as well as to support the public speaking and engagement activities of DriveU’s executive(s) relating to the DriveU business.
15.8.        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.
15.9.        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. Neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
15.10.      Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, 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 email shall be deemed received upon receipt of such email.
15.11.      No Third Party Beneficiaries. Except as expressly stated otherwise herein, there shall be no third-party beneficiaries of or under this Agreement.
15.12.      Export Compliance. Customer shall not transfer, export, re-export, import, re-import or divert any DriveU Materials 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. “Export Control Laws” means all export and re-export control Laws that apply to the DriveU Materials, as well as 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.
15.13.      Force Majeure. If any performance (excluding payment obligations) under this Agreement by either Party is prevented, interrupted, or delayed by reason of an event of Force Majeure (defined below), the Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed thereby, provided that such Party so affected shall promptly notify the other Party of the occurrence of such event. If and when performance is resumed, all dates specified in this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such event of Force Majeure. For purposes of this Agreement, an event of Force Majeure shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the License and/or of DriveU’s Intellectual Property Rights.
15.14.      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 BETWEEN DRIVEU 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. 

SCHEDULE A 

LIMITED WARRANTY

1.1.           Limited Warranty. DriveU warrants that during the Warranty Period (defined below):
(a)    any purchased Hardware shall be free from material defects in materials and workmanship, subject to normal and intended use and service (the “Hardware Warranty”); and
(b)    the Software (excluding the firmware) shall operate substantially in accordance with the material functions and features set out in the applicable documentation (the “Software Warranty”).

The Hardware Warranty and Software Warranty (each, a “Warranty” and collectively, the “Warranties”) are given to Customer only. For the avoidance of doubt, there is no Hardware Warranty for leased Hardware. In the event of any Warranty breach within the Warranty Period (each, a “Defective Item”), and provided Customer has notified DriveU via email (at info@driveu.auto) of the defect promptly after discovery thereof, DriveU shall first determine whether the defect can be resolved via the Support Services, and Customer shall fully cooperate with DriveU in such efforts. If DriveU determines that the Support Services cannot resolve the defect, DriveU shall (at its sole option) repair the Defective Item (or part thereof) or replace the Defective Item (or part thereof) with new or refurbished items (or parts), as the case may be. The foregoing represents Customer’s sole and exclusive remedy, and DriveU’s sole and exclusive liability, for any Warranty breach. In the event DriveU repairs or replaces a Defective Item pursuant to this Section, the applicable Warranty shall remain in force for the longer of (a) the remainder of the original Warranty Period; or (b) thirty (30) days from the date of the delivery of the repaired or replacement item or part (as the case may be). 

1.2.           Warranty Period. Unless the Order specifies a different warranty period, the “Warranty Period” shall be as follows:
(a)    for Hardware identified in the Order as a ‘beta’, ‘POC’, ‘evaluation’ (or similar) item, six (6) months commencing upon the date of delivery, and for for all other Hardware, twelve (12) months commencing from the date of delivery.; and
(b)    for Software, three (3) months from the date of first access or installation (as applicable), whichever occurs earlier. 

1.3.           Warranty Returns. This Section shall apply to Hardware only: Defective Items will be returned to DriveU DDP (Incoterms 2010), shipping charges prepaid. Title to any returned Defective Items 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 Items 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 Hardware back to Customer, provided that if DriveU reasonably deems, in its sole discretion, that the returned Defective Item was not covered by the Hardware Warranty, Customer will pay (or reimburse DriveU for) all return shipping charges. 

1.4.           Warranty Exclusions. The Warranties shall not apply (and DriveU shall have no responsibility or liability for) Hardware or Software problems or defects arising from any of the following (each, a “Warranty Exclusion”): (A) misuse, abuse, neglect, improper handling or installation, or use other than as specified in the applicable documentation; (B) accident, natural disasters, or other factors beyond the reasonable control of DriveU; (C) installation in/on a vehicle or other system other than a vehicle or system for which the Software or Hardware was designed; and/or (D) repair, reconfiguration, alteration, or servicing of the Hardware or Software by any person other than an authorized DriveU representative. Any services provided by DriveU in connection with the foregoing Warranty Exclusions shall be charged at DriveU’s then-current rates (as may be specified in the Order).

July, 2020

 

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Contact Information

DriveU Tech Ltd.
5 Hagavish st.
Kfar Saba
Israel 4442211
info@driveu.auto
Israel