Revised: July 25, 2024
These SaaS Terms of Service (referred to herein as the “Agreement”) constitute a legally binding agreement by and between Data Driverz Inc. ("Data Driverz”), a California corporation with offices at 985 Santa Cruz Drive, Pleasant Hill, CA 94523, and the company (the “Company”) identified in the duly executed order form (the “Order Form”), and is hereby entered into and made effective thereby as of the effective date indicated on the Order Form (the “Effective Date”). Data Driverz and Company may be referred throughout the Agreement individually as “Party” or together as “Parties”. In consideration of the promises and mutual covenants herein, the Parties agree as follows:
Company’s execution of one or more Order Forms that incorporate this Agreement by reference indicates Company’s acknowledgement and acceptance of the terms herein. As used herein, the term “Agreement” shall include all Order Forms, exhibits, policies, schedules, and documents incorporated herein by reference.
The Parties hereby agree as follows:
1. DEFINITIONS.
Capitalized terms within this Agreement shall have the meanings set forth below.
1.1 “User Data” means data furnished, made available, or otherwise entered into the SaaS by a User, to be used in conjunction with the SaaS to generate Results. User Data includes but is not limited to personally identifiable information.
1.2 “Derivatives” means works that are based upon one or more pre-existing works included in the SaaS, such as revisions, enhancements, modifications, translations, condensations, compilations, or any other form in which such pre-existing works may be recast, transformed or adapted.
1.3 “Documentation” means user documentation, SaaS specifications, release schedules, development plans, and any similar such materials provided to Company by Data Driverz per the terms of this Agreement.
1.4 “Exhibits” means the exhibits attached to this Agreement.
1.5 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.6 “Results” means output generated from the use of the SaaS.
1.7 “SaaS” means Data Driverz’s software as a service for automotive industry analytics and other functionality as described in Data Driverz’s published, then-current specification.
1.8 “Source Code” means the format in which SaaS is developed and from which a person skilled in computer programming may directly produce the internal logic and the structure of said SaaS.
1.9 “Professional Services Exhibit” means the Professional Services Exhibit that specifies this Agreement, and if fully executed by both Parties is hereby incorporated into this Agreement by reference.
1.10 “Technical Support Exhibit” means the Technical Support Exhibit that specifies this Agreement, and if fully executed by both Parties is hereby incorporated into this Agreement by reference.
1.11 “Users” means Company’s employees and contractors that are using the SaaS on Company’s benefit and behalf.
1.12 “Data” means data, information, content, and other materials licensed from third-parties that is made available, generated, or produced by Data Driverz through the SaaS.
1.13 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, by contract, or otherwise.
2. LICENSE
2.1 Company License. Subject to Company’s adherence to the terms and conditions of this Agreement, Data Driverz hereby grants to Company a limited, non-exclusive, non-sublicensable, non-transferable license in its Intellectual Property Rights in the SaaS, in the Territory, for the Duration to allow its Users to use the SaaS to access Data, manipulate and access User Data, and to generate Results, solely for Company’s internal use.
2.2 Territory and Duration. The license grants above shall be the United States (the “Territory”); and shall expire upon expiration of the Agreement (the “Duration”).
2.3 License Restrictions. Company receives no title to or ownership of the SaaS, its related information, derivatives thereof, or any Intellectual Property Rights therein (“Data Driverz IP”). Company receives no rights to market, sublicense, or distribute the SaaS to any third-party. Data Driverz grants no licenses to Company by implication, estoppel, or otherwise.
Without in any way limiting the generality of the foregoing, and notwithstanding anything to the contrary within this Agreement, Company shall not:
2.4 License Audit. During the term of this Agreement and for a one-year period thereafter, Data Driverz may audit Licensee’s use of the SaaS upon reasonable advanced written notice. Licensee will cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of the SaaS. Such audit should not unreasonably interfere with Licensee’s business activities. In the event that an audit reveals unauthorized or underreported use of the SaaS, Licensee will reimburse Data Driverz for the reasonable cost of the audit.
2.5 SaaS Logs. The SaaS may contain functionality intended to collect certain information regarding the use of the SaaS. This may include, by way of example and not limitation, information relating to size and number of databases and document objects, session information (e.g., number, duration, error messages, types/number of users and applications used), browser information and server configurations. This information may be used by Data Driverz to aid in the improvement of the SaaS.
2.6 User Data. Company warrants that it possesses all permissions, ownership rights, and/or license grants necessary to make use of the User Data as contemplated by this Agreement; and that its use of the User Data with the SaaS does not violate any applicable law or regulation. Company shall indemnify Data Driverz and its Affiliates against any action or claim that Company’s use of the User Data infringes or misappropriates any right of any third-party; or otherwise violates any applicable law or regulation.
2.7 No Trademark License Grant. No right to use Data Driverz’s name, trademarks, service marks, or logos (collectively, “Branding”) is granted to Company. Company shall not, at any time during or after the term of this Agreement, challenge or assist others to challenge the ownership of said Branding or attempt to register any trade names, trademarks, service marks, logos or other marks confusingly similar thereto.
3. SUPPORT AND PROFESSIONAL SERVICES; SERVICE LEVEL AGREEMENT
3.1 Support and Professional Services. Data Driverz shall provide technical support and professional services to Company per the terms of the exhibits attached hereto.
3.2 Service Level Agreement. SaaS availability shall be in accordance with the terms of the exhibit attached hereto.
4. OWNERSHIP
4.1 Ownership. Data Driverz owns all worldwide right, title and interest in and to the SaaS, its underlying technologies and data, its documentation, all Derivatives thereof, and all Intellectual Property Rights therein. All right, title and interest in and thereto, shall remain with Data Driverz. Company will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on the SaaS and Documentation as delivered to Company. Company will reproduce such notices on all copies it makes of the SaaS and Documentation.
5. WARRANTIES AND DISCLAIMERS
5.1 Right to Do Business. Each Party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
5.2 Disclaimer. THE SAAS, DATA, AND RESULTS ARE PROVIDED “AS-IS”. DATA DRIVERZ MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE SAAS, THE DATA, THE RESULTS, OR ANY SUPPORT SERVICES. WITHOUT LIMITING THE FOREGOING, DATA DRIVERZ DISCLAIMS ANY WARRANTY THAT THE SAAS, THE DATA, OR THE RESULTS WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. DATA DRIVERZ FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SAAS, THE DATA, AND THE RESULTS AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, OR FITNESS FOR A PARTICULAR PURPOSE. DATA DRIVERZ FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DATA DRIVERZ OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
6. LIMITATION OF LIABILITY
6.1 Liability Limits. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL DATA DRIVERZ’S AGGREGATE LIABILITY TO COMPANY IN CONNECTION WITH THIS AGREEMENT, ITS EXHIBITS, OR COMPANY’S ACCESS TO, USE, AND LICENSING OF THE SAAS, EXCEED THE SUM OF ALL FEES PAID TO DATA DRIVERZ BY COMPANY IN THE 12 MONTH PERIOD PRECEDING THE CLAIM OR ACTION GIVING RISE TO THE LIABILITY.
6.2 Acknowledgment. The Parties acknowledge that the limitations and exclusions contained in this Section 6 and elsewhere in this Agreement have been the subject of negotiation between the Parties and represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that a.) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and b.) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
7. CONFIDENTIALITY
7.1 Confidential Information. By virtue of this Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information” means all information or knowledge provided by one Party, including such Parties’ agents or contractors, to the other relating to this Agreement and the subject matter hereof, whether in physical or electronic form or pursuant to visits to premises and in any form or medium in which such information may be recorded or kept which: a.) if disclosed in writing, is marked as “confidential” or “proprietary”; b.) if disclosed orally, is summarized in writing by the disclosing Party and sent to the receiving Party within thirty (30) days of the initial disclosure; or c.) that given the nature of the information or the circumstances surrounding its disclosure should reasonably be considered as confidential. Confidential Information shall include, but not be limited to, trade secrets; documentation, reports and manuals, algorithms, ideas, concepts, methodologies, test data, test results, testing procedures and processes; technologies; techniques; business information; financial information; business plans; customer lists; marketing information; sales plans; sales projections; and/or results or reports generated from the use of the SaaS. The terms and conditions of this Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a bona fide need to know such information, provided that any such third-parties shall, before they may access such information, either a.) execute a binding agreement to keep such information confidential or b.) be subject to a professional obligation to maintain the confidentiality of such information. Company may use reports generated through the use of the SaaS only for its internal use.
7.2 Exclusions. Confidential Information shall not include information that: a.) is or becomes publicly known through no act or omission of the receiving Party; b.) was in the receiving Party’s lawful possession prior to the disclosure; c.) is rightfully disclosed to the receiving Party by a third-party without restriction on disclosure; or d. is independently developed by the receiving Party, which independent development can be shown by written evidence.
7.3 Use and Nondisclosure. Neither Party shall make the other’s Confidential Information available to any third Party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with confidentiality obligations that are at least as restrictive as the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing Party must provide the non-disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information. The obligations of this Section 7 shall survive for the term of this Agreement and for a period of five (5) years after expiration or termination thereafter. Notwithstanding the foregoing, with respect to Confidential Information that qualifies as “trade secret” under applicable law, the obligations of this Section 7 shall survive until the later of: a.) five (5) years after the expiration or termination of this Agreement; and b.) the date said Confidential Information no longer qualifies as “trade secret”.
8. SERVICES FEES AND PAYMENT TERMS
8.1 Fee and Payment Terms. As consideration for the licenses granted herein and the services provided, Company shall pay to Data Driverz the fees described in the Order Form.
8.2 Adjustment of Data License Fees. Data Driverz reserves the right to adjust the Data license fees upon any material increase of Data Driverz’ costs to license the Data, notwithstanding any agreed-upon fees stated in a duly executed Order Form. Any such adjustment will become effective upon the next monthly billing cycle of the applicable Order Form. Data Driverz will provide Company with at least fifteen (15) days' prior written notice of any adjustment to the Data license fees.
8.3 Payment Terms; Late Payment. Payment terms shall be as described in the Order Form. If Data Driverz has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one and a half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Data Driverz. Company shall reimburse Data Driverz for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
8.4 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Company shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder. If Company pays any withholding taxes that are required to be paid under applicable law, the fees due under this Agreement shall be uplifted in an amount that is equivalent to the withholding taxes withheld, and Company will furnish Data Driverz with written documentation of all such payments, including receipts.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall become effective on the Effective Date specified in the Order Form and shall continue in effect for the duration specified in the Order Form.
9.2 Termination for Breach. Either Party may terminate this Agreement should the other Party fail to cure a material breach of its terms within fifteen (15) days of receiving written notice thereof (or immediately if the breach is incurable).
9.3 Refund of Fees. Upon any termination due to a material breach of the Agreement by Company, fees already paid to Data Driverz shall not be refunded. Upon any such termination due to a material breach of the Agreement by Data Driverz, a prorated portion of any prepaid fees shall be returned to Company. For the avoidance of doubt, fees expressly delineated as non-refundable shall not be subject to the foregoing.
9.4 Effect of Termination. Upon the termination of this Agreement, Company will immediately cease all use of the Saas; deliver to Data Driverz all materials concerning the SaaS, including, but not limited to, user documentation, specifications, and documentation containing release schedules and development plans; will destroy all electronic files and materials concerning the SaaS and Documentation; and will certify in writing that all such materials have been destroyed..
9.5 Survival. The following sections shall survive the termination of this Agreement for any reason: 2.3, 2.4, 2.5, 2.6, 2.7, 4, 5.2, 6, 7, 8, 9.3, 9.4, 9.5, 10, and 12. Further any provisions that must survive to fulfill their essential purpose shall do so.
10. INDEMNIFICATION
10.1 Indemnification by Company. Company will defend or settle and save harmless Data Driverz its officers, directors, and employees against any and all claims, actions, damages, and losses (including attorney’s fees), arising out of or relating to: a.) Company’s negligence or intentional misconduct; b.) the breach of any warranty or material term of this Agreement by Company; or c.) Company’s use of the SaaS in violation of the terms herein.
11. DATA PROTECTION AND PRIVACY
11.1 Compliance with Privacy Laws. Data Driverz shall comply with all applicable laws and regulations, including but not limited to the California Consumer Privacy Act (CCPA) and any other applicable data protection and privacy laws. Data Driverz shall ensure that its data processing activities adhere to the requirements set forth in these laws to protect the privacy rights of Users.
11.2 No Sale of Personal Information. Data Driverz agrees that it will not sell any User’s personal information (as defined by the CCPA). This includes, but is not limited to, selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, personal information to another business or a third party for monetary or other valuable consideration.
11.3 Security Measures. Data Driverz shall implement and maintain reasonable security measures to protect User Data from unauthorized access, use, disclosure, alteration, or destruction. These security measures shall include, but are not limited to, administrative, technical, and physical safeguards appropriate to the sensitivity of the personal information being protected. Data Driverz shall regularly review and update its security practices to ensure the ongoing security of User Data.
11.4 Data Breach Notification. In the event of a data breach involving User Data, Data Driverz shall notify the affected User(s) within seventy-two (72) hours of discovering the breach. The notification shall include, at a minimum, a description of the breach, the type of data that was compromised, the steps Data Driverz is taking to address the breach, and any measures Users can take to protect themselves from potential harm resulting from the breach. Data Driverz shall also comply with any applicable legal requirements regarding the notification and remediation of data breaches.
12. GENERAL
12.1 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Contra Costa County, California. Data Driverz and Company hereby irrevocably submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
12.2 Dispute Resolution. In the event of any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, the Parties shall first attempt to resolve the matter through good faith negotiation. If the dispute is not resolved within thirty (30) days, the Parties agree to submit the dispute to mediation administered by a mutually agreed upon mediator. The mediation shall be conducted in Contra Costa County, California.
If the Parties are unable to resolve the dispute through mediation within sixty (60) days of the mediator’s appointment, the dispute shall be finally resolved by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules. The arbitration shall be conducted in Contra Costa County, California. The arbitrator(s) shall have the authority to award any relief that a court of competent jurisdiction could award, except that the arbitrator(s) shall not have the authority to award punitive or exemplary damages.
The Parties agree that any proceedings to resolve or litigate any dispute, whether in mediation, arbitration, or otherwise, will be conducted solely on an individual basis. Neither Party shall seek to have any dispute heard as a class action or in any other proceeding in which either Party acts or proposes to act in a representative capacity. The Parties further agree that no arbitration or proceeding shall be consolidated with any other arbitration or proceeding without the written consent of all Parties involved in such arbitration or proceeding.
12.3 Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
12.4 Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth above, delivered in person, or sent vial e-mail. The notices shall be deemed to have been given upon: a.) the date actually delivered in person; b.) the date confirmed received by reputable courier; or c.) the date sent by e-mail if sent during regular business hours, or the next business day if sent outside of regular business hours.
12.5 Severability. In the event any provision of this Agreement or its exhibits is held to be invalid or unenforceable, the remaining provisions thereof shall remain in full force and effect.
12.6 Force Majeure. Except with respect to the payment of fees due, neither of the Parties shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues, and such party continues to use commercially reasonable efforts to resume performance.
12.7 Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any laws and regulations governing the use of personally identifiable information, and any export laws and regulations of the United States. To the extent any such laws, rules or regulations prohibit Data Driverz from complying with any of its obligations hereunder, such failure shall be excused and shall not constitute a breach of this Agreement.
12.8 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent.
12.9 Assignment/Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that Data Driverz may assign this Agreement without such consent to the surviving party in a merger of Data Driverz into another entity, or to an acquirer of all or substantially all of Data Driverz’s business assets. This Agreement will be binding upon and inure to the benefit of the respective permitted successors and assigns of the Parties.
12.10 Entire Agreement. This Agreement, together with its exhibits and the Order Form, constitutes the complete and exclusive agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement and its exhibits. This Agreement and its exhibits may not be modified or amended except in a writing signed by a duly authorized representative of each Party.
12.11 Non-Exclusive Remedies. Unless expressly set forth as an exclusive and/or sole remedy, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12.12 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
12.13 Third-Party Beneficiaries. This Agreement is intended for the benefit of the signatories and is not intended to benefit any third-party except as expressly stated herein.
12.14 Counterparts. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
12.15 Modifications. Data Driverz may amend this Agreement at its sole discretion with notice thereof. E-mail notice and conspicuous notice on Data Driverz’s website shall be considered sufficient for the purposes of this clause. Company’s continuous use of the SaaS after any such amendment shall constitute Company’s agreement thereto.
12.16 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
EXHIBIT A
TECHNICAL SUPPORT SERVICES AND SERVICE LEVEL AGREEMENT
1. SUPPORT SERVICES
1.1 Support Services. Subject to Company’s adherence to the terms of the Agreement, including but not limited to this Exhibit, for the duration that this Exhibit remains in effect, Data Driverz support staff will make commercially reasonable efforts to resolve material, reproducible bugs in the SaaS that are reported by Company. Reported bugs must be reproducible using the SaaS as it is provided to Company by Data Driverz. Company must provide all support and information reasonably necessary for the bug’s reproduction. Company may report such bugs to Data Driverz by e-mail and/or support ticket. Support will be available from 9am to 5pm Pacific time, excluding weekends and holidays.
1.2 Exclusions. Data Driverz shall have no obligation of any kind to provide Technical Support for problems in the operation or performance of the SaaS caused by any of the following (each, a "Company-Generated Error"): a.) non-Data Driverz software or hardware products or use of the SaaS in conjunction therewith; b.) modifications to the SaaS not made by Data Driverz or a party expressly authorized by Data Driverz; or c.) Company’s use of the SaaS other than as authorized in Agreement or as provided in the documentation accompanying the SaaS. If it is necessary to perform Technical Support for a problem caused by a Company-Generated Error, Data Driverz will notify Company thereof as soon as Data Driverz is aware of such Company-Generated Error and Data Driverz will have the right to invoice Company at, and Company agrees to pay, Data Driverz’s then-current published time and materials rates for all such Technical Support performed.
2. SERVICE LEVEL AGREEMENT
2.1 Service Uptime. The SaaS will be available 99.9% as calculated each contract month (“Service Availability”).
2.2 Permitted Downtime. The occurrence of any one of the following events will constitute an exception to Data Driverz’s obligation to meet the Service Availability and will be considered “Permitted Downtime”:
2.3 Service Credits. In the event that Data Driverz fails to meet the Service Availability as specified herein, Data Driverz’s sole obligation and the Company’s exclusive remedy shall be the provision of service credits as described in this clause.
If Data Driverz fails to meet the Service Availability for a given month of service, the Company shall be entitled to a service credit equal to a percentage of the monthly service fee for the affected service, as outlined below:
To receive service credits, Company must submit a written request to Data Driverz’s customer support within thirty (30) days following the end of the month in which the Service Availability was not met. The request must include the dates and times of the downtime, a detailed description of the incident, and the amount of service credit requested. Data Driverz will review all requests and respond within thirty (30) days. Approved service credits will be applied to the Company’s account within the next billing cycle.
Service credits are provided solely as a remedy for the specific Service Availability failure and will not be exchanged for, or paid as, cash. The total amount of service credits provided in any given month will not exceed the monthly service fee paid by the Company for the affected service. Service credits cannot be carried over to future months or applied to other services provided by Data Driverz.
EXHIBIT B
PROFESSIONAL SERVICES
1. Professional Services. Data Driverz shall perform the professional services (the “Professional Services”) described below. Data Driverz shall perform the Professional Services in a professional manner and shall use commercially reasonable efforts to meet the descriptions, any specifications, and any time schedules for the completion of such Implementation Services.
2. Services to be Performed. The following Professional Services shall be performed:
Changes to the services to be performed shall require the mutual written agreement of the Parties.
3. Projected Dates. Professional Services timelines shall be as described in the Order Form or as otherwise mutually agreed to by the Parties. Data Driverz’s will make commercially reasonable efforts to adhere to these timelines. However, the timelines are subject to modification due to changes in specification, scope, and other anticipated and unforeseen circumstances. Company’s sole remedy for Data Driverz’s failure to meet any agreed upon schedule shall be the mutual agreement by the Parties on an alternate schedule.
4. Fees for Professional Services. Fees for Professional Services shall be as described in the Order Form.
5. Company Obligations. As a condition to Data Driverz’s obligations hereunder, Company shall provide Data Driverz with good faith cooperation and access to such information as may be reasonably required by Data Driverz in order to provide the services specified herein. In the event of any delay in Company’s performance of any of the obligations set forth herein, Data Driverz may adjust any related timelines.
