These Terms and Conditions (“Terms”) govern any order form incorporating these Terms by reference (“Order Form”) entered into between Full Measure Technologies, Inc. dba Distro (“Distro”) and the organization identified in the Order Form (“Customer”) as of the Effective Date. The Order Form, together with these Terms (including all exhibits) constitutes the “Agreement.” Capitalized terms not defined in these Terms have the meaning given to them in the Order Form. The Agreement governs Customer’s access to and use of the Platform and associated Services.
By executing an Order Form: (1) Customer agrees to be bound by the terms of the Agreement; and (2) the individual signing the Order Form represents and warrants that it has the authority to enter into the Agreement on behalf of Customer. If Customer does not agree to be bound by the terms of the Agreement, then Customer may not use the Platform or receive the Services.
1. DEFINITIONS. Capitalized terms have the meanings set forth below or as defined within the Agreement.
1.1 “Aggregate Data” has the meaning given in Section 5.2.
1.2 “AI Tools” means generative artificial intelligence and machine learning services or applications that are integrated into the Platform, including third-party large language models.
1.3 “Applicable Privacy Laws” means the data protection, data security and privacy laws and regulations of any jurisdiction applicable to the Platform under the Agreement.
1.4 “Confidential Information” means all information regarding a party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (a) is clearly identified as confidential or proprietary at the time of disclosure, or (b) the receiving party knew or should have known, given the nature of the information and the circumstances of its disclosure, was considered confidential or proprietary.
1.5 “Customer Data” means any content or information uploaded or transmitted to the Platform by Customer or Users, including from Third-Party Services (e.g., Customer’s ERP systems), or other Customer materials provided by Customer or accessed by Distro in connection with the Services. Customer Data does not include Performance Data or publicly available information.
1.6 “Distro Technology” means the Platform, Performance Data, the Aggregate Data, the Documentation, any deliverables provided as part of Services, and all applicable software, data, or technical information used by Distro or provided to Customer in connection with the foregoing.
1.7 “Documentation” means all specifications, user manuals, and other technical materials relating to the Platform that are provided or made available to Customer, as may be modified by Distro from time to time.
1.8 “Feedback” has the meaning given in Section 5.4.
1.9 “Fees” means the fees for accessing the Platform and any Services, as set forth on an Order Form.
1.10 “Go-Live Date” has the meaning given in the Order Form.
1.11 “Initial Term” has the meaning given in Section 8.1.
1.12 “Inputs” has the meaning given in Section 2.7.
1.13 “Order Term” has the meaning given in Section 8.1.
1.14 “Outputs” has the meaning given in Section 2.7.
1.15 “Performance Data” means general performance data about the Platform (e.g., response times, uptime, time to quote, quote conversion rate, revenue per quote, line items per quote, and revenue by segment) and data regarding Customer’s use of the Platform. Performance Data does not include any Customer Data.
1.16 “Personal Data” means Customer Data that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Privacy Laws or information of a similar character regulated by Applicable Privacy Laws, except that Personal Data does not include information pertaining to Customer personnel who are business contacts for Distro, or such information received by Distro directly or from other sources (such as its other customers) independent of Distro’s relationship with Customer.
1.17 “Platform” means Distro’s proprietary software-as-a-service platform, as described in an Order Form.
1.18 “Renewal Term” has the meaning given in Section 8.1.
1.19 “Services” means any onboarding, training, and other services related to the Platform performed by Distro for Customer, as identified on an Order Form.
1.20 “Third-Party Services” has the meaning given in Section 2.6.
1.21 “Users” means employees and independent contractors who are authorized by Customer to access the Platform pursuant to Customer’s rights under the Agreement.
2. PLATFORM ACCESS; RESTRICTIONS.
2.1 Access to the Platform. Subject to the terms and conditions of the Agreement, Distro hereby grants to Customer a revocable, non-sub-licensable, non-transferable (except as provided in Section 13.2), non-exclusive right to access and use the Platform and accompanying Documentation solely for Customer’s internal business purposes.
2.2 Access Credentials. Each User will be provided access to and use of the Platform through unique and confidential account credentials. These credentials cannot be shared or used by more than one individual User to access the Platform. Customer is responsible for maintaining the confidentiality of all Users’ account credentials and is solely responsible for the conduct of Users and all activities that occur under these User accounts. Customer will promptly notify Distro of any actual or suspected unauthorized use or access to its account.
2.3 Restrictions. Customer will not, and will not permit any User or third party to: (a) allow any third party to access the Distro Technology except as expressly allowed herein; (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Distro Technology for the benefit of any unauthorized third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Distro Technology, except as permitted by law; (d) use any automated software, devices or other processes to “scrape,” extract, or download data from the Distro Technology (other than Customer Data) without the prior written consent of Distro; (e) interfere in any manner with the operation of the Distro Technology or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Distro Technology without the prior written consent of Distro; (f) attempt to access the Distro Technology through any unapproved interface; (g) attempt to circumvent any usage restrictions of the Distro Technology; (h) modify, copy or make derivative works based on any part of the Distro Technology; (i) access or use the Distro Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (j) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Distro or its licensors on the Distro Technology or any copies thereof; or (k) otherwise use the Distro Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order Form, or the Agreement.
2.4 Suspension. Distro reserves the right to suspend Customer’s or any User’s access to the Platform for any failure to comply with the foregoing conditions in Section 2.3 (Restrictions). Although it is not anticipated and Distro appreciates Customer’s desire for uninterrupted access to the Platform, Distro may need to suspend Customer’s or any User’s access to all or any part of the Platform if Customer’s or any User’s use of the Platform poses a risk to the security or integrity of the Platform or supporting systems, interferes with Distro’s ability to reliably provide the Platform to other customers, or subjects Distro to unreasonable liability risks. Distro will use reasonable efforts to notify Customer or the applicable User(s) prior to suspension and will restore access to Customer or the applicable User(s) as soon as such risks no longer apply.
2.5 Customer Data. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer shall provide all applicable notices and obtain all required licenses, consents, and permissions under applicable law (including Applicable Privacy Laws) that are required of Customer, as well as needed for Distro, to use, disclose, copy, store, and process the Customer Data on the Platform as contemplated herein. The Customer Data will not: (a) be deceptive, defamatory, obscene, pornographic, or unlawful; or (b) contain any sensitive personal information, including but not limited to personal medical information, personal financial information, government IDs, passport numbers, or social security numbers; or (c) infringe upon any third-party intellectual property, privacy, or other proprietary rights.
2.6 Third-Party Services. The Platform integrates with third-party services, technology, and applications that are not provided by Distro, including Customer’s ERP systems and AI Tools (collectively, “Third-Party Services”). Customer is responsible for enabling the integration of each Third-Party Service under its control. Customer acknowledges that: (a) Distro may share or receive Customer Data through the integration with such Third-Party Services so that it may be used in accordance with the terms of the Agreement, and (b) it is instructing Distro to share and receive Customer Data with the providers such Third-Party Services for this purpose. Third-Party Services are not under the control of Distro, and Distro is not responsible for any Third-Party Services. Customer’s use of the Third-Party Services under its control is governed by the Customer’s agreement with providers of the Third-Party Services. Customer acknowledges and agrees that, for the purposes of Applicable Privacy Laws, each of Distro and providers of any Third-Party Service are not processors or subprocessors of Personal Data with respect to each other.
2.7 Use of AI Tools. The Platform leverages AI Tools. Customer may submit inputs (including but not limited to queries, product documentation, and inventory information) to the AI Tools (“Inputs”) and receive back outputs (including but not limited to purchase orders, quotes, and RFQs) generated by the AI Tools in response to Customer’s Inputs (“Outputs”). Inputs and Outputs are both Customer Data. Notwithstanding anything else in the Agreement, Distro may use Inputs and Outputs and related metadata on an aggregated, anonymized, and de-identified basis to train or improve the AI Tools.
3. SERVICES.
3.1 Services. Distro will provide the Services as set forth in an Order Form. The Services and any code or other deliverables provided as a part of the Services may only be used in conjunction with the Platform. All Services will be provided remotely unless otherwise agreed in the applicable Order Form.
3.2 Cooperation. Customer will reasonably cooperate with Distro in the performance of the Services and the operation of the Platform. Such cooperation may include (a) the appointment of a single point of contact for all matters related to the Services, (b) the provision of reasonable remote network access to those Customer systems that use the Services, (c) making suitably trained personnel with sufficient knowledge of Customer’s systems available during normal business hours, (d) facilitating the necessary integrations with Third-Party Services. Customer acknowledges that in order to perform the Services, Distro may be required to have access to certain Customer Data.
3.3 Support. Subject to the terms and conditions of the Agreement, Distro will exercise commercially reasonable efforts to: (a) provide support to Customer for the use of Platform in accordance with industry standards and its standard policies and procedures; and (b) keep the Platform operational and available to Customer in accordance with the Service Level Agreement set forth in Exhibit A (“SLA”).
4. FEES AND PAYMENT.
4.1 Fees. Customer will pay Distro the Fees set forth on an applicable Order Form. Fees are payable upfront and are non-refundable (except as expressly set out in the Agreement or an Order Form) and are not eligible for set off. Unless otherwise set forth in an Order Form, Customer will pay the Fees within thirty (30) days of receipt of an invoice. Customer will maintain complete, accurate and up-to-date Customer billing and contact information. Unless otherwise stated on an Order Form, at the end of the Initial Term or any subsequent Renewal Term (as those terms are defined in Section 8.1), Distro reserves the right to increase the Fees payable for the forthcoming Renewal Term upon written notice to Customer at least ninety (90) days prior to the commencement of the Renewal Term. Such revised Fees will take effect immediately upon the commencement of the Renewal Term.
4.2 Taxes. All Fees owed by Customer in connection with the Agreement are exclusive of, and Customer will pay, all sales, use, excise, and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with the Agreement, except for employment taxes and taxes based on Distro’s income.
4.3 Late Payment. Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) of that overdue balance. Distro reserves the right (in addition to any other rights or remedies Distro may have) to suspend Customer’s access to the Platform if any Fees set forth in the applicable Order Form are more than thirty (30) days overdue until such amounts are paid in full.
5. PROPRIETARY RIGHTS.
5.1 Distro Technology. Distro retains all right, title, and interest in and to the Distro Technology, including any enhancements, improvements, or derivatives to the Distro Technology, including made as part of the Services or in response to Feedback. Other than as expressly set forth in the Agreement, no license or other rights in the Distro Technology are granted to Customer.
5.2 Customer Data. Customer retains all right, title, and interest in and to the Customer Data. Customer authorizes Distro to access and use Customer Data: (a) during the Order Term, to provide the Platform, Services, and any accompanying support to Customer as set forth in the Agreement, and (b) during and after the Order Term, to create aggregated, anonymized, and de-identified data (“Aggregate Data”) to improve the Platform, including to train AI Tools. Except as provided herein, Distro shall not resell or otherwise enable direct use of the Customer Data to or by any third party without express written consent of Customer; and shall not use or enable use of Customer Data to train any AI Tool for any other customer or third party.
5.3 Performance Data. As part of ordinary course SaaS practices, Distro monitors Customer’s use of the Platform and may collect to ensure the functionality is working and is responsive to Customer’s needs. As part of that process, Distro collects and compiles Performance Data, which does not incorporate Customer Data. Distro uses Performance Data to operate, improve, analyze, and support the Platform and Services in addition to other business purposes permitted under applicable law.
5.4 Feedback. Customer or its Users may give feedback to Distro on the use, operation, and functionality of the Platform and Services, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and User-desired features, functionality, or workflows (collectively, “Feedback”). To be responsive to such requests, Distro may use and incorporate such Feedback to improve the Platform and related Services without restriction or payment to Customer. Distro will not identify Customer as the source of any Feedback, and Distro acknowledges that all Feedback is provided on an “as is” basis and that Customer is not responsible for Distro’s use of any Feedback, including any results from the Feedback.
6. DATA SECURITY; PRIVACY
6.1 Data Security. During the Order Term, Distro will implement and maintain commercially reasonable administrative, technical, and physical measures designed to safeguard against unauthorized access to or use or disclosure of any Customer Data (including any Personal Data) through the Platform.
6.2 Privacy. Distro will process Personal Data only in accordance with Customer’s instructions to Distro contained in the Agreement. The Agreement is a complete expression of such instructions, and Customer’s additional instructions will be binding on Distro only pursuant to an amendment to the Agreement signed by both parties. By entering into the Agreement, Customer instructs Distro to process Personal Data to provide the Platform and to perform its other obligations and exercise its rights under the Agreement. Customer will ensure (and is solely responsible for ensuring) that it has given such notices to and obtained such consents and permissions from all relevant third parties, and has reserved all rights, in each case, as may be required under applicable law or otherwise for Distro to process Personal Data as contemplated by the Agreement.
7. CONFIDENTIAL INFORMATION
7.1 Restrictions. As a recipient of Confidential Information, each party will (a) use the Confidential Information of the disclosing party only as set forth in the Agreement, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under the Agreement, (c) limit access to the Confidential Information of the disclosing party to its employees and contractors who have a need to know such information to use or provide the Platform or Services, and ensure that such employees or contractors are bound by confidentiality obligations at least as protective as those contained in the Agreement, and (d) protect the Confidential Information of the disclosing party from loss or unauthorized use, access, or disclosure in a reasonable manner. Personal Data will be treated in accordance with Section 6.2 (Privacy) and will not be deemed Confidential Information.
7.2 Exclusions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information that (a) is or becomes generally known and available to the public through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession without confidentiality restrictions prior to disclosure by the disclosing party, (c) is received without a confidentiality restrictions from a third party with the right to make such a disclosure, or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, as long as the receiving party, if permitted by law, provides advance notice of the disclosure to the disclosing party and cooperates so that the disclosing party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
8. TERM AND TERMINATION.
8.1 Term. Each Order Form will continue for the initial term specified on the Order Form or, if no initial term is specified, for an initial term of one (1) year following the Go-Live Date (the “Initial Term”). Unless specified otherwise on the Order Form, each Order Form will automatically renew for successive one (1)-year terms (each a “Renewal Term” and together with the Initial Term, the “Order Term”), unless either party provides no fewer than sixty (60) days’ written notice of its intent to terminate the Order Form prior to the end of the then-current term.
8.2 Termination. Either party may terminate the Agreement upon written notice if: (a) the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach, or (b) the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement, or (iii) makes an assignment for the benefit of its creditors.
8.3 Termination for Legal Cause. Although this is not anticipated, Distro reserves the right to terminate the Agreement with immediate effect: (a) following any change to or enactment of any applicable law that renders any material portion of the Platform illegal, or otherwise has a material adverse effect upon a party’s ability to exercise its rights or perform its obligations under the Agreement; or (b) if Distro is required or directed to do so by any governmental authority. However, unless prohibited by applicable law or such governmental authority, prior to terminating the Agreement, Distro will first engage Customer in good faith negotiations for at least thirty (30) days to make mutually agreeable changes to the Platform to address such illegality, effect, or direction giving rise to such termination right and, after such negotiations, the parties will take reasonable best efforts to make such changes, and will terminate the Agreement only if such negotiations are unsuccessful in reaching agreement on such changes.
8.4 Effect of Termination. Upon the expiration or termination of the Agreement for any reason, the rights and licenses granted to Customer under the Agreement will immediately terminate and Customer will cease use of the Platform and Documentation. Termination of the Agreement will not relieve Customer of its obligation to pay all Fees that accrued prior to such termination. Each party will return to the other or destroy all property (including any Confidential Information) of the other party, except to comply with Section 8.5 below. Notwithstanding the foregoing, each party may retain the Confidential Information of the other in accordance with its standard backup procedures, subject to the requirements in Section 7 (Confidential Information). Sections 1, 2.3, 4, 5 (excluding any term-limited license grants), 7, 8.4, 8.5, and 10-13 will survive the termination of the Agreement.
8.5 Data Export. During an Order Term and for thirty (30) days following termination of an Order Term, Distro will make all Customer Data stored on the Platform available for export by Customer. Following this window for the export of Customer Data, Distro may irretrievably erase any Customer Data stored on the Platform in complying with Section 8.4 above.
9. LIMITED WARRANTIES.
9.1 Customer Warranties. Customer represents and warrants that (a) it has all rights necessary to upload and use the Customer Data with the Platform and to grant Distro all licenses to Customer Data in the Agreement without violating any third-party intellectual property, privacy, or other rights, including Applicable Privacy Laws; and (b) Customer will not upload or share any data or other information to the Platform that: (i) knowingly infringes or misappropriates any third party’s intellectual property rights; (ii) knowingly contains any viruses, worms or other malicious computer programming codes that may damage the Distro Technology; or (iii) otherwise violates the rights of a third party.
9.2 Distro Warranties. During the Order Term, Distro represents and warrants to Customer that it will not materially reduce the general functionality of the Platform. If Customer notifies Distro of any breach of the foregoing warranty, Distro will, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to repair and fix the issue.
10. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE DISTRO TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) DISTRO AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR INFRINGEMENT. DISTRO DOES NOT WARRANT OR REPRESENT THAT THE DISTRO TECHNOLOGY WILL BE FREE FROM BUGS OR UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE DISTRO TECHNOLOGY IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. CUSTOMER ACKNOWLEDGES THAT THE DISTRO TECHNOLOGY LEVERAGES CERTAIN ARTIFICIAL INTELLIGENCE FEATURES AND FUNCTIONS AND THAT ARTIFICIAL INTELLIGENCE SYSTEMS ARE A RAPIDLY EVOLVING FIELD. WHILE DISTRO IS ALWAYS WORKING TO IMPROVE THE DISTRO TECHNOLOGY, THE PROBABILISTIC NATURE OF ARTIFICIAL INTELLIGENCE MEANS THE DISTRO TECHNOLOGY MAY PROVIDE INACCURATE OUTPUT (SUCH AS HALLUCINATIONS) OR OTHERWISE NOT ALWAYS PRODUCE ACCURATE OR INTENDED RESULTS. AS SUCH, CUSTOMER ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY DISTRO WITH RESPECT TO THE SPECIFIC RESULTS OR ANY OUTPUT OF ANY AI TOOLS OR FEATURES OR FUNCTIONS OF THE DISTRO TECHNOLOGY, AND CUSTOMER MUST THOROUGHLY REVIEW AND APPROVE ANY SUCH OUTPUT AND CONFIRM APPROPRIATENESS AND ACCURACY FOR THE APPLICABLE USE CASE BEFORE ANY USE OF SUCH OUTPUT.
11. INDEMNITY.
11.1 By Distro. If any action is instituted by a third party against Customer based upon a claim that the Distro Technology, as delivered and when used in accordance with the Agreement, infringes any third party’s intellectual property rights, Distro will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim that are finally awarded against Customer or paid in settlement. The foregoing indemnification obligation does not apply to alleged infringement or misappropriation arising from Outputs. If the Distro Technology is enjoined or, in Distro’s determination is likely to be enjoined, Distro will, at its option and expense (a) procure for Customer the right to continue using the Distro Technology, (b) replace or modify the Distro Technology so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate the Agreement and Customer’s access to the Distro Technology and refund any amounts previously paid for the Distro Technology attributable to the remainder of the then-current Order Term. Distro will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Distro Technology not in accordance with the Agreement or as specified in the Documentation; (ii) any use of the Distro Technology in combination with other products, equipment, software, or data not supplied by Distro, including Third-Party Services; or (iii) any modification of the Distro Technology by any person other than Distro or its authorized agents. This Section states the entire obligation of Distro and the exclusive remedy of Customer against Distro for any claim that the Distro Technology infringes a third party’s intellectual property rights.
11.2 By Customer. If any action is instituted by a third party against Distro relating to (a) Customer Data or (b) Customer’s breach or alleged breach of 2.5 (Customer Data) or 9.1 (Customer Warranties), Customer will defend such action at its own expense on behalf of Distro and will pay all damages attributable to such claim that are finally awarded against Distro or paid in settlement of such claim.
11.3 Procedure. Any party that is seeking to be indemnified under this Section 11(the “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity under the Agreement (a “Claim”), (b) give the Indemnifying Party the sole control over the defense of such Claim, and (c) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party will not agree to any settlement that requires the Indemnified Party to admit to fault or to take or refrain from taking any action without the Indemnified Party’s prior written consent.
12. LIMITATION OF LIABILITY.
12.1 Mutual Waiver. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL DISTRO OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR LOST PROFITS, OR SIMILAR IN ANY WAY RELATING TO THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT DISTRO IS NOT LIABLE, AND CUSTOMER AGREES IT WILL NOT SEEK TO HOLD DISTRO LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING THE PROVIDERS OF ANY THIRD-PARTY SERVICE.
12.2 Mutual Liability Cap. IN NO EVENT WILL A PARTY’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY DISTRO FROM CUSTOMER PURSUANT TO THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 Exclusions.THE FOREGOING LIMITATIONS WILL NOT APPLY TO OBLIGATIONS TO PAY THE FEES, A PARTY’S INDEMNITY OBLIGATIONS (TO THE EXTENT PAID TO THE THIRD-PARTY PLAINTIFF), BREACHES OF SECTION 2.3 (RESTRICTIONS) OR TO LIABILITIES THAT CANNOT BE LIMITED BY LAW. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THE AGREEMENT SHALL SURVIVE AND APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE PARTIES WOULD NOT HAVE ENTERED INTO THE AGREEMENT BUT FOR SUCH LIMITATIONS.
13. GENERAL PROVISIONS.
13.1 Governing Law; Forum. The Agreement will be governed by, and all disputes arising under or in connection with the Agreement will be resolved in accordance with, the laws of the State of California, exclusive of conflict or choice of law rules. Any action, suit, or other proceeding based upon or arising from the Agreement will be brought and maintained exclusively in a federal or state court of competent jurisdiction located in Santa Clara County, California. Each party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. Notwithstanding the foregoing, nothing will prevent a party from seeking relief in any court of competent jurisdiction for any misuse or misappropriation of that party’s intellectual property rights or Confidential Information.
13.2 Assignment; Subcontractors. Neither party may assign the Agreement, including any rights or obligations arising hereunder, without the prior written consent of the other party, except that either party may assign the Agreement without the consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. The Agreement will be binding upon each party’s respective permitted successors and assigns. Distro may subcontract certain aspects of the Distro Technology and Services to qualified third parties, provided that Distro will be responsible for such subcontractors any such subcontracting arrangement will not relieve Distro of any of its obligations under the Agreement.
13.3 Order of Precedence. In the event of a conflict between these Terms, an Order Form, or an exhibit to these Terms, the following order of precedence will govern: the Terms and Conditions, an Order Form (as applicable), and then the other exhibits, if any. Notwithstanding the foregoing, an Order Form will take precedence over these Terms if the Order Form expressly states which sections of these Terms are intended to be superseded by the Order Form.
13.4 Notices. Any notice under the Agreement must be given in writing to the other party at the email or physical address set forth on an Order Form. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) when sent if delivered by email that references this Section 13.4 (unless an error message or failure-to-deliver notification is received).
13.5 Force Majeure. Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of the Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outage, or any other event beyond the control of such party (collectively, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. If the Platform is unavailable or materially degraded for a continuous period of fourteen (14) days due to a Force Majeure Event, either party will have the right to terminate the Agreement, and Distro will refund any amounts previously paid for the Platform attributable to the remainder of the then-current Order Term.
13.6 Beta Products. If Distro gives Customer access to an early or prerelease feature or version of the Platform that is identified as a beta or similar, or a version or feature of the Platform that is not generally available (“Beta Product”), then such Beta Product is provided “as is” and Section 9.2 (Distro Warranties) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Distro’s discretion with or without notice.
13.7 Marketing. Customer will support Distro’s marketing efforts by granting Distro the rights to use its name and logo and performing the marketing support activities described on an Order Form.
13.8 Export Laws. Customer shall not use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Distro, or any products using such data, in violation of the U.S. export laws or regulations. Further, each party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Platform provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product of a deliverable is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by Export Laws, including nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.
13.9 U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Platform and provided in connection with the Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, including the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation), any use, modification, reproduction, release, performance, display, disclosure or distribution of such software by or for the U.S. Government will be governed solely by the Agreement and will be prohibited except to the extent expressly permitted by the Agreement.
13.10 Miscellaneous. The Agreement (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. Only a written amendment signed by both parties may modify an Order Form; however, given that these Terms apply across Distro’s customers, these Terms may be amended by Distro upon written notice to Customer, provided that any such amendment will not be effective until the commencement of the next Renewal Term. The Agreement may be executed in counterparts, which taken together will form one legal instrument. If any provision of the Agreement is held to be invalid or unenforceable, the valid or enforceable portion of such provision and the remaining provisions of the Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of the sections of the Agreement are for convenience and are not to be used in interpreting the Agreement. As used in the Agreement, the word “including” means “including but not limited to.” The parties to the Agreement are independent contractors, and no agency, partnership, franchise, joint venture, or employee-employer relationship is intended or created by the Agreement. There are no third-party beneficiaries of the Agreement.
[End of Terms and Conditions]
EXHIBIT A
SERVICE LEVEL AGREEMENT
This SLA forms part of, and is incorporated into, the Agreement between Distro and the Customer identified in the applicable Order Form.
Definitions
“Available Minutes” means the total number of minutes in a calendar month, minus Excluded Minutes and Scheduled Downtime.
“Downtime Minutes” means the total number of minutes in a calendar month when the Platform is not available to Customer, as confirmed by Distro’s internal monitoring systems, minus Excluded Minutes and Scheduled Downtime.
“Excluded Minutes” means when the Platform is not available because of (a) a Force Majeure Event; (b) general Internet connectivity issues; (c) equipment or software made available by anyone other than Distro and that is not within Distro’s reasonable control; or (d) Customer’s use of the Platform in a manner not authorized by the Agreement.
“Scheduled Downtime” means the period where the Platform is not available to Customer because Distro is performing routine or scheduled maintenance during the following time windows: 8:00pm to 2:00am Eastern (US & Canada) time during Saturday and Sunday.
Uptime
Target Uptime. Distro will use commercially reasonable efforts to make the Platform available for at least 99.5% of the time as calculated each calendar month (“Target Uptime”).
Calculating Uptime. The availability of the Platform will be calculated as the total number of Available Minutes minus the number of Downtime Minutes, divided by the total number of Available Minutes, measured in a calendar month. If the Order Term includes a partial month, the numerator and denominator will only include the days that are part of the Order Term for that month.
Remedies
Service Credit. If Platform availability falls below the Target Uptime, Customer is eligible to receive a credit in accordance with the chart below (“Service Credit”). Service Credits only apply towards future Platform Fees owed by Customer to Distro, and Service Credits issued to Customer in a given year will be capped at eight percent (8%) of the annual Fees.
Actual Uptime Percentage
≥98.0% but < 99.5%
≥95.0% but < 98.0%
< 95.0%
Service Credit (as a percentage of monthly Platform Fee)
5%
10%
20%
Requesting a Service Credit. To receive a Service Credit, Customer must notify Distro within 7 days of the end of the month in which Customer believes the Service Credit was earned, otherwise Service Credit eligibility will expire for that month. Customer must include information about when it was unable to access the Platform. Customer may be required to provide additional details about its attempts to access the Platform. If Distro can verify Platform unavailability in its internal monitoring systems and the disruption does not qualify as Excluded Minutes or Scheduled Downtime, Distro will calculate and issue the applicable Service Credit on Customer’s account to apply towards a future invoice.
Service Credit Limitations. Service Credits may not be exchanged for, or converted to, monetary amounts. Service Credits do not earn interest. Service Credits will not accumulate within a single Order Term in an amount more than 8% of Platform Fees for that Order Term. Service Credits expire when the applicable Order Form ends.
Termination. If the Platform does not meet the Target Uptime for three (3) consecutive months and Customer has notified Distro of the failures within 7 days of the end of each impacted month, Customer may immediately terminate the affected Order Form by giving written notice to Distro. If Customer terminates an Order Form under this section, Distro will pay to Customer a prorated refund of prepaid Fees for the remainder of the Order Term.
Exclusive Remedy. This SLA describes Customer’s exclusive remedy and Distro’s entire liability for any failure of the Platform to meet the Target Uptime.