DRIVN Terms of Service
THESE DRIVN TERMS (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN DRIVN MOBILE, INC. A DELWARE CORPORATION, WITH REGISTERED OFFICES AT 19 TECH CIRCLE, NATICK MA 01760 DOING BUSINESS UNDER THE TRADE NAME “DRIVN”, (“DRIVN”), AND GOVERN USE OF THE SERVICE BY CUSTOMER (“Customer”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING A ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY TAKING ANY STEPS TO SET-UP, CONFIGURE, INTEGRATE WITH, OR USE THE SERVICE, CUSTOMER AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT: YOU ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY; IN SUCH A CASE, REFERENCES TO “CUSTOMER” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.
IF YOU DO NOT HAVE THE AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE.
DRIVN MAY MODIFY THIS AGREEMENT OR OTHER TERMS REFERENCED IN THIS AGREEMENT AT DRIVN’S DISCRETION AT ANY TIME BY POSTING THE CHANGES ON DRIVN’S WEBSITE, BY SENDING NOTICE VIA AN EMAIL TO THE EMAIL ADDRESS CUSTOMER PROVIDES UPON REGISTRATION, BY INCLUDING A MESSAGE ON AN INVOICE, OR BY ANYOTHER NOTICE METHOD AS WOULD REASONABLY COME TO CUSTOMER’S ATTENTION.
CUSTOMER’S SOLE RECOURSE IF IT DOES NOT ACCEPT THE MODIFICATION IS TO TERMINATE THE SERVICE IN ACCORDANCE WITH SECTION 11. THE REVISED AGREEMENT WILL BECOME EFFECTIVE FIVE (5) DAYS FOLLOWING CUSTOMER NOTIFICATION UNLESS CUSTOMER EXPRESSLY ACCEPTS THE REVISED AGREEMENT EARLIER. CUSTOMER’S CONTINUED ACCESS TO AND USE OF THE SERVICE AFTER THE MODIFICATION HAS COME INTO EFFECT CONSTITUTES ITS ACCEPTANCE OF THE MODIFICATION AND CUSTOMER AGREES THAT (I) CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED THE MODIFICATION, WITH NO ADDITIONAL WRITTEN AGREEMENT OR EXPRESS ACKNOWLEDGEMENT REQUIRED; AND (II) CUSTOMER WILL CONTINUE TO BE RESPONSIBLE FOR APPLICABLE FEES UNLESS CUSTOMER TERMINATES THIS AGREEMENT IN ACCORDANCE WITH SECTION 11. CUSTOMER IS RESPONSIBLE FOR REGULARLY REVIEWING THE DRIVN WEBSITE FOR ANY MODIFICATION TO THIS AGREEMENT.
If you subscribe to a trial subscription by executing an Order Form or clicking an online box, this agreement will also govern that trial subscription.
“Activity” shall mean a game, sport, training or fitness program or regime, athletic event or competition as specified in the Order Form for which Customer desires to use the Service to manage the communication, actions and performance of its Teams.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Customer. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Athlete” means someone who physically participates in or is intended or desired to participate in Customer’s Activity. An Athlete is a User and a member of Customer’s Team.
“Customer Content” means photos, text, web page layouts, graphics, artwork, video, sound, trade names, trademarks, service marks, logos, titles, characters owned by Customer or its Affiliates provided by Customer or its Affiliates to DRIVN for use in conjunction the Service. Customer Content does not include DRIVN Content.
“Customer Data” means any information collected by Customer and input into the Service in regard to each User, or generated by Customer in its use of the Service with regard to a Team’s participation in an Activity.
“Documentation” means the standard user guide that DRIVN generally makes available to its customers in connection with the Service.
“DRIVN Content” means (i) on-screen layouts, product categories, product descriptions, text, graphics, artwork, video, sound or other tangible artistic or textual material whether or not used or provided for use for the Service, that are created by, owned by, licensed to (other than through this Agreement) and/or controlled by DRIVN or any DRIVN Affiliate; (ii) any materials, including without limitation, software and copyrightable works of any nature, that DRIVN or its Affiliates contributes to the Service in performance of this Agreement; and (iii) any and all HTML formatting code, source and object code, programming code and software, as well as all text, images, video, audio, and other data, products, services, advertisements, promotions, URLs, keywords and other navigational elements, links, pointers, technology and software, including any modifications, upgrades, updates, and enhancements provided by DRIVN to implement the Service in connection with this Agreement or otherwise. For the avoidance of doubt, it is expressly agreed and understood that articles and other content created by or on behalf of DRIVN or its Affiliates during the Term for use with the Service shall be deemed DRIVN Content, but excluding, in any case, any Customer Content and Customer Data that may be contained in such articles or other content.
“Order Form” means an ordering document executed by the parties that specifies the Activity and Teams using the Service purchased by Customer under this Agreement. Each Order Form shall incorporate this Agreement by reference. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Service” shall mean the mobile online web-based application set forth in an Order Form and provided by DRIVN to Customer.
“Staff” shall mean non-Athletes who track, coach, instruct, monitor or support a Team in their performance of an Activity.
“Subscription” shall mean the provision of the Service for a particular Team for a specific Activity.
“Subscription Term“ means the period identified in the Order Form during which Customer is authorized to use or access the Service pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 12.
“Team” means the Athletes and Staff involved in the Activity. The Team name and number of Users is identified on the Order Form. Each Team is limited to one Activity.
“User” means an individual who is authorized by Customer to use the Service, for whom Customer have ordered the Service, and to whom Customer (or DRIVN at your request) have supplied a user identification and password. Users can be either Athletes or Staff assigned to a particular Team.
2.1 Provision of Service. DRIVN shall use commercially reasonable efforts to (1) make the Service available to Customer pursuant to this Agreement and all Order Forms during the Subscription Term, (2) provide technical support for the Service through two (2) Users identified to DRIVN as individuals responsible for Customer side User support and the coordination of technical requests for the configuration and use of the Service during DRIVN’s normal business hours, and (3) provide such other services as may be described in the Order Form.
2.2 Users. Customer shall purchase subscriptions for the Service on a per Team per Activity basis. Within the same Team, Customer may reassign Users from time to time to new Users provided the new Users replace former Users who no longer use or need access to the Service and for whom Customer has de-activated all information and data from the Service.
2.3 Additional Users. The number of Users set forth in the Order Form cannot be decreased during the Subscription Term. Customer agrees that if the Users accessing the Service at any time exceed the number of Users purchased for a particular Team and Activity identified in the Order Form, then Customer must purchase additional User subscriptions for the applicable Activity and Team equal to the difference between the purchased User Subscriptions and the actual number of Users. The increased number of Users for the Team shall then become the minimum Users amount for the remainder of the Subscription term and the Service Fee amount shall be increased accordingly. Unless otherwise specified in the relevant Order Form, (i) Customer will pro-rate and co-term the Subscription Term for any Users purchased after the initial order with the expiration of the Subscription Term in effect immediately prior to the time additional Subscribers are added; (ii) fees for additional User purchased in the middle of a billing month will be charged in full for that billing month; and (iii) the per-User rate for any additional User subscription shall be the same as the per-User rate in effect at the time the additional Subscriptions are added. The number of Users may not be reduced or cancelled during the Subscription Term.
2.4 Customer Storage Allotment. DRIVN includes in the Service a maximum Team Customer data storage allotment (“Standard Storage Allotment”). In the event Customer uses, or is likely to use, in excess of the Standard Storage Allotment, Customer must purchase additional storage allotment at DRIVN’s then current standard list price. DRIVN shall have the right to limit Customer’s usage to the Standard Storage Allotment until such time as Customer purchases additional storage.
2.5 Trial Use. If you are participating in a Trial subscription as indicated in the Order Form, DRIVN will make the Services available to Customer on a trial basis until the earlier of (a) the end of the free trial period as indicated on the Order Form or (b) the start date of any Service subscriptions ordered by Customer. Any Customer Content or Customer Data entered into the Service or provided to DRIVN will be permanently lost unless your purchase a subscription to the same services as those covered by the trial prior to the end of the trial period. NOTWITHSTANDING SECTION 9, DURING THE FREE TRIAL THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. FEES AND PAYMENTS.
3.1 Invoicing and Payment. Except as otherwise specified in an Order Form, all fees under this Agreement will be invoiced in advance and are due net ten (10) days from the invoice date. Any payment not received by DRIVN by the due date is subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law. If Customer’s account is thirty (30) days or more overdue (except for charges then under reasonable and good faith dispute), then, in addition to any of its other rights or remedies, DRIVN reserves the right to suspend Customer’s access to the Service, without liability to Customer, until such amounts are paid in full.
3.2 Taxes. Unless otherwise specifically stated, DRIVN’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on DRIVN’s net income or property. If DRIVN has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides DRIVN with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3 Automated Billing. If Customer has provided a credit card or debit card (the “Payment Card”) to DRIVN as part of Customer’s account set-up for Customer’s pre-authorized payments, Customer authorizes DRIVN to charge Customer’s Payment Card for all outstanding Fees and outstanding account balances due under the Agreement. If Customer’s pre-authorized payment fails, DRIVN may immediately deactivate Customer’s account without notice and collect Fees owing using other collection mechanisms. Customer is solely responsible for all Fees incurred under its Account. If Customer has subscribed to the Service via DRIVN’S website, then Customer shall (a) keep the billing, payment card and payment information Customer provides to DRIVN (including name, credit card number and expiry date, mailing address, email address and telephone number) accurate and up to date; (b) promptly advise DRIVN if Customer’s payment card information changes due to loss, theft, cancellation or otherwise and be responsible for any Fees submitted before DRIVN could reasonably act on Customer notice; (c) remain liable for failure to pay any Fees owed to DRIVN due to Customer’s failure to provide DRIVN with up to date billing information. Additionally, Customer agrees that it must contact DRIVN support department within thirty (30) days of the charge date, if Customer has any questions regarding any Fees that have been applied to Customer’s account.
4. USE GUIDELINES. Customer shall use the Service during the Subscription Term in accordance with this Agreement and shall not license, sublicense, sell, resell, rent, lease, transfer, assign distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to its Team. Customer agrees it shall not, and its Team(s) shall not, use the Service or provide Customer Content: (i) to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) in violation of any applicable federal, state, local or international laws or regulations, including but not limited to the Children’s Online Privacy Protection Act, Family Education Rights and Privacy Act, and relevant data privacy laws; (iii) to send or store infringing, obscene, threatening, harassing, libelous, defamatory or otherwise unlawful or tortious material, including material harmful to children; (iv) in connection with or to promote illegal activity or the offering for sale of illegal weapons or substances, or the promotion or publication of any material that may violate hate crime laws, (v) which of any other person or entity including, but is not limited to, digitization of music, movies, photographs or other copyrighted materials or software; (vi) to upload to the Service or use the Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (vii) to export software or technical information in violation of U.S. or other relevant export control laws (viii) to interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (viv) to attempt to gain unauthorized access to the Service or its related systems or networks. Customer is responsible for all activity that occurs in its Team accounts and for its’ Team compliance with this Agreement. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Content and Customer Data. DRIVN DISCLAIMS ANY PERCEIVED, IMPLIED OR ACTUAL DUTY TO MONITOR THE CONTENT OF THE SERVICES AND SPECIALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR CONTENT WITHIN THE SERVICE OR CUSTOMER CONTENT. Without limiting any of its other remedies, DRIVN reserves the right to suspend or terminate Customer’s use of the Services or Customer’s use or uploading, posting, transmission, display, performance or distribution of objectionable Customer Data or Customer Content.
5. DRIVN ACCESS GRANTS; OWNERSHIP.
5.1 Access Grant; Ownership. Subject to the terms of this Agreement and the applicable Order Form, DRIVN grants Customer a nonexclusive, nontransferable license to access and use the Service during the Subscription Term. Except for the limited rights expressly granted to Customer hereunder, DRIVN reserves all rights, title and interest in and to the Service, the underlying software, the DRIVN name, logo, tagline and other trademarks and various domains (collectively “DRIVN Technology”) and the DRIVN Technology is covered by intellectual property rights owned or licensed by DRIVN (“DRIVN IP Rights”). Other than as expressly set forth in this Agreement, no license or other rights in the DRIVN IP Rights are granted to the Customer, and all such rights are hereby expressly reserved.
5.2 Customer Restrictions. Customer shall not (i) modify, copy, display, republish or create derivative works based on the Service or the underlying software; (ii) modify, copy or create derivative works of the Service or any content; (iii) frame, scrape, link to or mirror any content forming part of the Service; (iv) reverse engineer the Service or the underlying software; or (v) access the Service or allow others to access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Customer shall use diligent efforts to prevent unauthorized access to, or use of, the Service, and notify DRIVN promptly of any such unauthorized access or use.
6. CUSTOMER LICENSE GRANTS; OWNERSHIP
6.1 License Grant; Ownership. Customer grants to DRIVN and its Affiliates a non-exclusive, perpetual, worldwide, sub licensable, license to copy, distribute, publish, transmit, display, perform, edit, modify, translate, reformat and otherwise use the Customer Content and Customer Data to the extent necessary to provide the Service, subject to the terms of this Agreement. As between DRIVN and Customer, Customer owns all rights, title and interest in and to all Customer Content and Customer Data. DRIVN shall not access Customer’s User accounts, including Customer Data or Customer Content, except to (i) respond to service or technical problems, (ii) confirm compliance with the terms of this Agreement or to audit use for invoicing purposes; (iii) satisfy any applicable law, regulation, legal process or governmental request; (iv) detect, prevent, or otherwise address fraud, security or technical issues; (v) to provide the Service or (vi) otherwise at Customer’s direction or request.
6.2 Aggregate Customer Data Use; Suggestions. Notwithstanding any other provision in this Agreement, DRIVN may retain, collect and use Customer Data and related statistics for all Teams, as well as general usage, traffic patterns, and various other data in aggregate form, provided that such information does not identify Customer or its Users specifically. DRIVN shall have the right, without limitation, to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Service.
8. CONFIDENTIAL INFORMATION; DISCLOSURES; REMEDIES. Each party shall protect the other party’s Confidential Information from unauthorized disclosure in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than reasonable care. No obligation of confidentiality applies to information that (i) is or becomes generally known to the public without breach of any obligation owed to the party making a disclosure (“Disclosing Party”); (ii) was, prior to disclosure, already known to the party to whom information is disclosed (“Receiving Party”) or lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without any obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) must be disclosed to a court or a government agency pursuant to a subpoena or other valid order where the Recipient shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Except with prior written permission of the Disclosing Party, the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
9. WARRANTY; DISCLAIMERS
9.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. DRIVN represents and warrants that: (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service will perform materially in accordance with DRIVN’s Documentation under normal use and circumstances. Customer represents and warrants that: (a) it owns or otherwise has sufficient rights in the Customer Content and Customer Data to grant to DRIVN the rights granted in this Agreement under all applicable laws; (b) if Customer’s Team include Users younger than 14 then Customer warrants it is in compliance with all applicable laws including the Children’s Online Privacy Protection Act and any other applicable laws and if Customer Users are students of an educational institution, Customer Data and Customer’s use of the Service is in compliance with The Family Educational Rights and Privacy Act and any other relevant federal or state legislation. If the end user is a student athlete and their personal data is subject to the Family Educational Rights and Privacy Act then you warrant that you have obtained the student athlete or their parents/guardian consent for the disclosure and use of personal data as required by FERPA or the personal data provided is exempt from a consent requirement pursuant to FERPA or any other applicable law.
9.2 Disclaimer of Warranties. EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS GIVEN THAT THE SERVICE PROVIDED HEREUNDER WILL BE CONTINUOUSLY AVAILABLE OR ERROR FREE.
10. MUTUAL INDEMNIFICATION
10.1 Indemnification by DRIVN. DRIVN will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and DRIVN will indemnify you for any damages, attorney fees and costs finally awarded against Customer as a result of such claim or under a court-approved settlement of such claim provided Customer (i) notifies DRIVN promptly upon learning that the claim may or has been asserted, (ii) gives DRIVN sole control over the defense of the claim and any negotiation for its settlement or compromise (except that DRIVN may not settle any claim against Customer unless it release Customer of liability) and (iii) Customer provides DRIVN with all reasonable assistance If a claim described in this Section may or has been asserted, Customer will permit DRIVN, at DRIVN’S option and expense, to (i) procure the right to continue using the Service, (ii) replace or modify the Service to eliminate the infringement while providing functionally equivalent performance, or (iii) if DRIVN in good faith determines that options (i) and (ii) are not practicable, DRIVN may terminate this Agreement effective immediately upon written notice to Customer and refund to Customer the unused prepaid portion of the Subscription Fee. This indemnity does not cover infringement claims based on or arising from (i) combination, operation, or use of the Service with products, services, software programs, hardware, data, equipment, or other items or products not supplied by DRIVN or other than according to this Agreement or DRIVN’s online help documentation, if infringement would have been avoided without such combination, operation, or use; (ii) Customer required configuration, designs and specifications; or (iii) any claim resulting from or related to the Customer Data or Customer Content. This Section states DRIVN’s entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.
10.2 Indemnification by Customer. Customer shall defend DRIVN and its Affiliates against any claim, demand, suit or proceeding made or brought against DRIVN alleging that the Customer Content, Customer Data or the Users use of the Service (1) infringes a party’s property, privacy, publicity or other rights; (2) is defamatory, slanderous or is violative of any federal, state or local law or regulation applicable to Customer and its use of the Service; (3) breaches this Agreement and Customer shall indemnify DRIVN against any loss, damage, liability or costs (including reasonable attorneys’ fees) incurred in connection with claims made or brought against DRIVN. Promptly upon receiving notice of a Claim, DRIVN shall (a) give Customer prompt written notice of the claim; (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any claim unless it unconditionally releases DRIVN of all liability and does not impose any monetary obligation or disruption to the Service); and (c) provide to Customer, at Customer’s cost, all reasonable assistance in the defense or settlement of such claim.
11. LIMITATION OF LIABILITY. NEITHER PARTY, NOR ITS AFFILIATES, AGENTS, LICENSORS OR SUPPLIERS, SHALL, UNDER ANY CIRCUMSTANCES, HAVE ANY LIABILITY TO EACH OTHER, ANY USER OR OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, DOWNTIME OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH OR FAILURE OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
IN NO EVENT WILL THE AGGREGATE LIABILITY THAT DRIVN, ITS AFFILIATES, AGENTS, LICENSORS OR SUPPLIERS MAY INCUR IN ANY AND ALL ACTIONS OR PROCEEDINGS EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING EXCLUSION AND LIMITATION.
12. TERM AND TERMINATION.
12.1 Term. This Agreement is valid for the duration of the Subscription Term. Other than a Trial Subscription which terminates at the end of the limited period indicated in the Order Form, each Subscription automatically renews for Renewal Terms in successive periods of one year or as otherwise indicated in the Order Document, unless the Subscription is terminated as described in Sections 12.2 and 12.3.
12.2 Termination at Subscription Expiration. Either party may give the other a written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. Customer may elect to terminate the Service at any time, without right of refund, the Service by giving thirty (30) days prior written notice to DRIVN.
12.3 Termination for Cause. A party may terminate the Service by written notice on the ground of: (i) breach by the other party of any obligations in this Agreement or the Order Form and, if capable of remedy, failure to remedy such breach within thirty (30) days of written notice; or (ii) change of control, bankruptcy, insolvency, receivership, liquidation or assignment of the other party’s assets for the benefit of creditors. Upon termination, DRIVN shall have no obligation to maintain or provide any Customer Data or Customer Content and may thereafter, unless otherwise required by law, elect to delete all Customer Data and/or Customer Content from the Service.
12.4 Suspension of the Service or User Access. DRIVN retains the right, at any time, and without prior notice to Customer and without breaching this Agreement, to suspend Customer’s access to the Service or its Team access for any of the following reasons: (i) any content within the Service is deemed obscene, inappropriate or illegal, (ii) to prevent or cease unauthorized access to a User’s account profiles; or (iii) the operation or display of the Service violates any Federal, state or international law, regulation, rule, guideline or treaty, or the rights of any third party; (iv) in the event of a violation of the confidentiality obligations or any use guidelines . The Parties will, in good faith, use reasonable efforts to resolve the cause of the suspension to their mutual satisfaction.
12.5 Outstanding Fees. Termination or expiration of the Subscription Term shall not relieve customer of its obligation to pay any fees accrued or payable to DRIVN relating to the Service.
13.1 Publicity. DRIVN may use Customer’s standard graphics, trademarks, logos, imagery and name, in accordance with Customer’s trademark guidelines in DRIVN’s general promotional, advertising and marketing materials, including the posting of any such materials on DRIVN’s website or within the Service. In addition, with Customer’s prior consent, DRIVN may issue a press release relating to this Agreement.
13.2 Export Control. The Service, related technical information, documents and materials are subject to the United States Export Administration Regulations and other applicable export and anti-terrorism laws and regulations. Customer agrees to comply with the requirements established under these controls and Customer will not export, re-export or transfer directly or indirectly the Service, or any related technical information, documents or materials, or any direct product thereof to any destination, company or person restricted or prohibited by these controls.
13.3 Notice. All notices required hereunder shall be in writing and sent to the address stated in the Order Documents or to such other address notified to the other party in writing. Notices are deemed to have been given (i) on the date delivered by courier, or (ii) if by certified mail return receipt requested, on the date received. For notices directed to the Customer as part of DRIVN’s general customer base, DRIVN may give notice by means of a general publication on the Service, by electronic mail to the e-mail address notified by Customer to DRIVN, or by written communication sent by first class mail or pre-paid post to Customer’s address indicated in the Order Document. Notices to the general customer base are deemed given upon the expiration of 48 hours after publication on the Service or mailing by first class mail or pre-paid post, or 8 hours after sending by email.
13.4 Waiver; Enforceability. Any waiver or modification of this Agreement or any Order Document is effective only when made in writing by DRIVN. If any provision of this Agreement or the Order Form is held by a court of competent jurisdiction to be unlawful, void, or unenforceable, such declaration shall not affect the validity or enforceability of the remaining provisions.
13.5 Assignment. Customer may not assign or transfer its rights or duties in whole or in part to a third party without written consent of DRIVN. DRIVN may assign its rights and/or obligations hereunder, upon notice to Customer, to (i) a related party, or (ii) an unrelated party pursuant to an assignment, conveyance of assets, a merger, consolidation or other corporate reorganization. A transfer in violation of this Section is void.
13.6 Force Majeure. If DRIVN is prevented or delayed in the performance of any of its obligations in this Agreement or any applicable Order Form by any event beyond its reasonable control, such as but not limited to natural disasters, flood, fire, explosion, accidents, strikes or labor disputes, the inability to procure materials from the usual sources of supply, acts or restraints of government, requisition or order of any governmental authority relating to the use or destination of the Service, or failure of internet service providers or hosting facilities, and DRIVN notifies Customer thereof specifying the matters constituting force majeure together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, DRIVN is excused from performance or punctual performance as the case may be for so long as such cause of prevention or delay continues.
13.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the conflict of law principles thereof. The Parties irrevocably and unconditionally agree that any legal proceeding arising under or in connection with this Agreement, except for those seeking injunctive relief, will be brought exclusively in the law court located in Boston, Massachusetts.
13.8 Survival. Upon termination or expiration of this Agreement, the following provisions shall survive: Sections 1, 2, 3, 6.2, 8, 9, 10.2, 11, 12.5, 13.3, 13.7 and Exhibits to the extent relevant to the surviving sections.
13.9 Entire Agreement. This Agreement and the Order Forms constitute the entire understanding of the parties with respect to the subject matter herein and supersede any prior proposal, representation or written agreement. DRIVN shall not be bound by any other provisions in Customer’s purchase orders , online procurement or invoicing portals or other documents which are inconsistent with or in addition to the provisions hereof, except when expressly agreed to in writing by an authorized representative of DRIVN.
May 2017 rev.