The terms of this Master Service Agreement (“Agreement”) govern your use of the Services (defined below) of Drivetrain AI Inc (“Company”). If you do not agree to these terms, DO NOT USE the Company’s Services. By accepting the terms below or by using the Company’s Services, you, the entity you represent and any affiliate of such entity (collectively referred to as “Customer”) agree that you have read and agree to be bound by these terms to the exclusion of all other terms. This Agreement is entered into as of the date you accept these terms or use the Services (“Effective Date”).
“Services” shall mean the online, web-based applications provided by the Company, ordered by Customer’s selection and acceptance of a Subscription Plan by means of (i) the online purchasing process on a website operated by the Company or its Affiliates or (ii) an executed Order Form. “Authorized User” means any individual provided with access to the Services by Customer. A “Subscription Plan” shall mean a specified pricing plan and term length with associated features, functionality and volume tiers for the Services purchased by Customer. An “Order Form” shall mean an ordering document for the Services, including without limitation statements of work, signed by both parties and incorporating the terms of this Agreement by reference. An “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity.1. SERVICES AND SUPPORT
1.1. Subject to the terms of this Agreement, Company grants to Customer a limited, non-exclusive, right to access and use the Services solely for Customer’s internal business purposes and not for resale or further distribution. Customer’s right to access and use the Services shall be limited to the Subscription Plan for the Services purchased by Customer and all terms and conditions herein. Except for the rights expressly granted to Customer in this Agreement, Company retains all right, title and interest in and to the Services, including all related rights protected by applicable intellectual property laws, including U.S. copyright law, trade secret, and international treaties.
1.2. Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.3. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth in Exhibit B.2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify or translate, based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) use the Services or any Software for time sharing or otherwise for the benefit of a third party; (iv) access or use the Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove any proprietary notices or labels.
2.2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations. Each party hereby agrees to indemnify and hold harmless the other party against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although, the Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the terms stated in this contract.
2.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all users of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. PAYMENT OF FEES
3.1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein, as long as an addendum is signed to this contract by both parties for any additional fees. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email.
3.2. Subscription Plans are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term, or as otherwise stated in the Order Form.
3.3. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
3.4. Customer shall be responsible for all taxes associated with Services other than Indian taxes based on Company’s net income.
4. PRIVACY AND INFORMATION SECURITY
4.1. User Data - To the extent Customer Data that includes Personal Information is sent by Customer through the Services and Customer’s use of the Services involves transferring Personal Information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of this section 4 shall apply to such Personal Information and be incorporated into the Agreement. Under no circumstances will the Company be deemed a data controller with respect to Customer Data under the Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data on the free movement of such data, and repealing Directive 95/46/EC (“General Data Protection Regulation”) or any relevant or replacement law or regulation of any Member State as defined in the General Data Protection Regulation. “Personal Information” means any Customer Data processed by the Company pursuant to the Agreement, relating to an identified or identifiable natural person; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.
4.2. Hosting and Processing - Customer Data is hosted and stored by the Company or its service providers in the United States or elsewhere as otherwise agreed to by Customer. In providing the Services, Company or its service providers may process Customer Data, including, without limitation, any associated Personal Information, within the European Economic Area, the United States and in other countries and territories.
4.3. Tracking - Tracking - Company’s Services are intended to allow Customer to learn how a user of Customer’s mobile applications, mobile websites, web connected devices or web properties with which Customer has integrated the Services (“End Users”) use Customer’s mobile applications, mobile websites, web connected devices or web properties. The Services give Customer the ability to track and send data, media and other information provided by or on behalf of Customer to the Services, excluding Sensitive Information (collectively, “Customer Data”) by using a first-party cookie placed on End User’s device from Customer’s server. Additionally, pursuant to the Documentation and Customer’s implementation of Company’s integration library, the Services may automatically track or by default track certain End User data, including, but not limited to, the time of an event, the elements an End User has interacted with, metadata and other details about these elements including duration of interaction, how an End User came to Customer’s site, what search engine and search keywords End Users may have used to get to Customer’s site, information about the device used by End User, such as their operating system and browser, the city or country location of an End User. Inclusive of the foregoing, Customer may decide through its implementation of Company’s integration library, what data to track and send to the Services.
4.4. Customer Data Rights - Company does not sell, lease, rent or otherwise share for consideration Customer Data. Company will share Customer Data only under the following circumstances: (i) With contracted service providers who perform work on Company’s behalf to provide the Services (ii) To the extent needed to comply with laws or to respond to lawful requests and legal processes (iii) To protect the rights and property of the Company, its agents, other Company customers, and others, including, but not limited to, enforcing Company’s agreements, policies and this Agreement (iv) In an emergency, including to protect Company’s information security or the personal safety of any person (v) In connection with a sale or transfer of all or part of the Company’s business or assets. Company stores, uses and accesses Customer Data for the limited purposes of: (a) performing Company’s obligations under this Agreement and any applicable Order Form; (b) responding to service issues and requests for support; (c) complying with Customer’s instructions; and (d) maintaining and improving the Services.
4.5. Customer Data Deletion - Company provides the Customer with access to Customer Data and the ability to delete Customer Data upon request. Upon cessation or termination of Company’s relationship with Customer, Company has no obligation to maintain or provide any Customer Data and will promptly delete or destroy Customer Data no longer in active use unless prohibited by law.
4.6. Privacy Statement - Company’s tracking and use of information collected about the Customer on Company’s sites are governed by Company’s Privacy Statement, available at https://www.drivetrain.ai/privacy/
5. CONFIDENTIALITY: PROPRIETARY RIGHTS
5.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in the performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after ten (10) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
5.2. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
5.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.4. Feedback. If Customer or its Authorized Users provide the Company any suggestions, recommendations, or other feedback relating to Company’s current or future products or services (“Feedback”), Company shall have the right to use the Feedback in any manner, including, but not limited to future enhancements and modifications to the Services. Customer hereby grants to the Company and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party. In addition, Company shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Services.6. WARRANTY AND DISCLAIMER
6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2. Customer warrants that it owns or has obtained all necessary rights, title and interest, provided all appropriate notices and obtained all necessary consents, to use the Services to track End Users and transfer the Customer Data to the Company and its third-party subcontractors for the purpose of processing such Customer Data in accordance with this Agreement.7. TERM AND TERMINATION
7.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
7.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.8. INDEMNITY
8.1. Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service(i) not supplied by Company,(ii) made in whole or in part in accordance with Customer specifications,(iii) that are modified after delivery by Company,(iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or(vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense(a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality,(b) obtain for Customer a license to continue using the Service, or(c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8.2. Customer will defend, indemnify and hold harmless the Company, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Services, Customer’s violation of this Agreement, Customer Data, or Customer’s violation of any rights of a third party through use of the Services.9. LIMITATION OF LIABILITY
9.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.10. TRADEMARKS AND PUBLICITY
10.1. Company Trademark. “Drivetrain”, the Drivetrain logo, and any other product or service name or slogan displayed on the Services are trademarks of Drivetrain AI Inc. or its Affiliates, and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of the Company or the applicable trademark holder. In addition, the look and feel of the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of the Company and may not be copied, imitated or used, in whole or in part, without prior written permission.
10.2. Publicity. Customer agrees to allow the Company, and hereby does provide the Company with the necessary rights and licenses to use Customer’s name and logo on the Company sites, blog and/or in marketing materials only to imply that the Customer is a Customer of the Company.
The company hereby agrees to ask the Customer for explicit permission.For using the Customer for Case studies
Quoting the customer for services provided on the sites, blog and/ or in marketing materials
Using the customer as a customer reference for the Services provided 11. MISCELLANEOUS
11.1. Governing Law - These terms and conditions shall be governed by and construed in accordance with the internal law of the State of Delaware, United States of America. Any dispute arising under these terms and conditions shall be subject to the jurisdiction of the courts of Delaware. The Customer agrees to reasonably cooperate with the Company to serve as a reference account upon request.
11.2. Assignment – Either Party may transfer and assign any of its rights and obligations under this Agreement without consent.
11.3. Entire Agreement - This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
11.4. Effect of Termination - The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer, Feedback, Indemnity, and Limitation of Liability.
11.5. Severability - If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.6. Others - No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.