a) By signing the agreement, Customer (collectively, “you” or the “Customer”) is indicating that you expressly accept the following terms and conditions in this legal agreement (the “Agreement”) between you and Sayvee Creative Inc. (“Drivingit”) governing your use of Drivingit‘s online inventory management software and any seller related software you may install on your computer (the “Service”). If you are entering into this Agreement, you represent that you are authorized to accept the terms of this Agreement on behalf of yourself or the organization you represent. If you do not have such authority, or if you do not agree with the terms and conditions of this Agreement, you must not sign the contract, and may not use the Service. Signing this agreement or payment of the Service is a confirmation of this agreement
2. LICENSE GRANT & RESTRICTIONS
a) Drivingit hereby grants the Customer, during the terms of this Agreement, the non-exclusive, non-transferable, worldwide right to use the Service, solely for the Customer’s own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to the Customer are reserved by Drivingit and its third party licensors or suppliers (collectively, the “Licensors”)
b) The Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the content provided by or on behalf of Drivingit through the Service (the content) in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
c) Customer agrees that Drivingit may publish, modify and amend any and all content appearing within Drivingit.com, and all other internet domains or content feeds owned, managed, or controlled by Drivingit, including content consisting of promotions, advertisements and listings for non-competing local businesses, or products and services offered by Drivingit.
3. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA
a) The parties acknowledge and agree that, subject to the license grants contained in this Agreement, Drivingit, retains all right, title and interest, including all related intellectual property rights, in and to the Drivingit technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations (collectively, Feedback) or other information provided by the Customer or any other party relating to the Service. Customer retains all right, title and interest to any and all specific data including specific inventory information, specific consumer review data captured by the Drivingit system (“Customer Specific Data”) provided to Drivingit, subject to Drivingit’s right to use such Inventory Information and Customer Data to provide the Service to Customer and General Data (data not identifying specific clients or their purchases) to enhance Drivingit products or provide new services. This Agreement is not a sale and does not convey any rights of ownership in or related to the Drivingit Service, Drivingit technology, Drivingit Content, or Drivingit intellectual property to the Customer except for the limited licenses granted to the Customer under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by Drivingit or its Licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of Drivingit or its Licensors
b) The trademarks, trade names, service names or logos associated with the Service (collectively, the “Marks”) are trademarks of Drivingit or its Licensors, and no right or license is granted to use them. Customer hereby acknowledges Drivingit or its Licensors’ perpetual and exclusive ownership of and title to the Marks and the goodwill attaching thereto. Customer agrees not to use or attempt to register any Mark that is confusingly or deceptively similar to the Marks.
4. CUSTOMER RESPONSIBILITY AND PASSWORDS; THIRD PARTY SOFTWARE
a) You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Drivingit immediately of any unauthorized use of your account or any other breach of security. Drivingit will not be liable for any loss that you may incur as a result of someone else using your password or account, or accessing your data either with or without your knowledge. Customer warrants and represents that: (i) the content to be transmitted by or on behalf of Customer does not constitute SPAM; (ii) the content to be transmitted by or on behalf of Customer is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) Customer has complied and will comply with all applicable laws respecting its execution and performance of this Agreement.
5. CLIENT DATA AND ACCOUNT INFORMATION
a) Drivingit does not own any Customer Data, information or material that you submit to the Service in the course of using the Service. You, not Drivingit, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, or as required by law, Drivingit shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or for the improper or erroneous upload or extraction of any Customer Data. Drivingit has a right to use General Data. Drivingit reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, Drivingit shall have no obligation to maintain or forward any Customer Data.
6. LIMITED LIABILITY
A) IN NO EVENT SHALL Drivingit, ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF Drivingit HAS BEEN ADVISED OR WARNED BY CUSTOMER OF THE POSSIBILITY OF SUCH DAMAGES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER CUSTOMER CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SERVICE OR THE OPERATION OF Drivingit OR ITS LICENSORS’ NETWORKS; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY CUSTOMER VIA Drivingit OR ITS LICENSORS’ NETWORKS. THE TOTAL CUMULATIVE LIABILITY OF Drivingit TOGETHER WITH ITS SUBSIDIARIES, OFFICES, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AFFILIATES TO CUSTOMER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE IS LIMITED TO THE AMOUNT OF FEES CUSTOMER PAYS TO Drivingit IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. The foregoing limitations will apply even if Drivingit has been notified of the possibility of such damages and notwithstanding the failure of the essential purpose of any limited remedy. No action or claim relating to this Agreement shall be made against Drivingit or its Licensors, subsidiaries, officers, directors, employees, partners or affiliates by Customer or on Customer’s behalf more than 12 months after the event giving rise to such action or claim.
7. INDEMITY
a) The parties agree to be responsible for their own negligent acts/omissions.
8. TERM
a) This Agreement is a yearly or multi year commitment billed in accordance with Section 10 below. This Agreement will automatically renew on the last day of the month unless Drivingit is notified in writing at least 30 days prior to the renewal date.
9. TERMINATION
a) Any breach of your payment obligations or unauthorized use of the Drivingit Technology, Content or Service will be deemed a material breach of this Agreement. Drivingit, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition to any other rights granted to Drivingit herein, Drivingit reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent, the Drivingit Terms of Use, or otherwise engage in fraudulent or unlawful activities. In addition, Drivingit may terminate a free account at any time in its sole discretion.
b) You agree and acknowledge that Drivingit has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay Service Fees, and such breach has not been cured within 15 days of notice of such breach. In addition, Drivingit may terminate this Agreement in the event that you request a refund pursuant to Section 11 in three consecutive months. Drivingit will have no liability for any suspension or termination of your account in accordance with this paragraph.
10. BILLING & PRICING
a) Drivingit charges and collects in advance for use of the Service. Drivingit will automatically renew and bill your credit card or issue an invoice to you (i) every month for monthly licenses and fees, (ii) each year on the subsequent anniversary for annual licenses, or in (iii) an otherwise mutually agreed upon manner. The renewal charge will be equal to the then-current license fee in effect at the time of renewal.
11. CREDIT CARD AUTHORIZATION
a) By submitting your credit/debit card (“Bank Card”) data to Drivingit, you authorize Drivingit in its complete discretion to submit a financial transaction(s) to your issuing bank for settlement. You agree that once Drivingit has approved or declined your transaction, Drivingit has fully performed under the terms of this Agreement. You agree to contact Drivingit in the event that you desire to cancel any recurring charge, prior to the next billing cycle. Should you fail to contact Drivingit to cancel any recurring charge before the next billing cycle, you understand that you will be billed for such recurring charge. Drivingit may be contacted at: finance@sayvee.com or Sayvee Creative Inc, PO Box 22133 Capri P/O, Kelowna, BC, Canada V1Y 9N9 or 1(250) 717-8855. If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact Drivingit prior to the next billing cycle. Upon proper notification, Drivingit, in its sole discretion may issue a credit to your Bank Card.
12. REPRESENTATIONS & WARRANTIES
a) Each party represents and warrants that it has the power and authority to enter into this Agreement. Drivingit represents and warrants that it will provide the Service in a manner consistent with generally accepted industry standards. Customer represents and warrants that Customer has not falsely identified itself or its corporate entity nor provided any false information to gain access to the Service and that all Bank Card and other billing information that Customer has provided is correct. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT AS EXPLICITLY SET FORTH ABOVE, Drivingit IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, CONTENT OR TECHNOLOGY, AND Drivingit AND ITS LICENSORS, PARTNERS AND AFFILIATES DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, Drivingit WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY THE CUSTOMER DUE TO CAUSES BEYOND Drivingit’S CONTROL.
13. RESPONSIBILITY FOR CONTENT, TRANSMITTING MESSAGES, AND ACCOUNTS
a) You are solely responsible for the information or content submitted, posted, transmitted or made available through your use of the Services (“Content”). You may use the Services to transmit Content or direct Drivingit to make contacts via any channel (in either case “Messages”) to, or with, recipients (the “Recipients”). You are responsible for maintaining the confidentiality of your accounts and owner numbers and necessary codes, passwords and personal identification numbers used in conjunction with the Services and for all uses of the Services in association with your accounts whether or not authorized by you including unintended usage due to holidays, daylight savings, computer clock errors or similar circumstances. You acknowledge and agree that Drivingit does not control nor monitor your Content nor guarantee the accuracy, integrity, security or quality of such Content. Use of recording or taping any use of the Services by you may subject you to laws or regulations and you are solely responsible for and obligated to provide any required notification to those being recorded or taped. You represent and warrant that: (a) you have the legal right to use all Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content, timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations; (b) you are the transmitter of all Content and Messages and Drivingit is merely acting at Client’s direction as a technology conduit for the transmission of the Content and the Messages; (c) Drivingit’s use of the Content shall not violate the rights of any third party or any law, rule or regulation and (d) you will not transmit or allow to be transmitted any Content or Messages that include the following but is not inclusive of: (i) you do not have a right to make available under any law or under contractual or fiduciary relationship; (ii) are false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; harmful to minors in any way; (iii) infringe any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party; (iv) utilize any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other forms of solicitation; or (v) interfere with or disrupts the Services or servers or network operator networks. You represent and warrant that you have obtained prior express consent to contact each cell phone number delivered by you to Drivingit in connection with the provision of any Services delivering a prerecorded message (“Notification Services”); (ii) where Drivingit reasonably believes that you may not have complied with all laws, rules and regulations applicable to the performance of Notification Services, Drivingit may, at its option; (A) scrub all numbers against any appropriate data base deemed necessary to remove all cell phone numbers or (B) not provide any Notification Services; (iii) you further represent and warrant that (A) (1) you have incorporated an interactive opt-out mechanism as part of any program relating to any Notification Services or (B) the contacts that are the subject of such Notification Services are not initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations”), and (2) you have obtained from the recipient of any Solicitation an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule; (iv) where Drivingit reasonably believes that you may not have complied with all laws, rules and regulations applicable to Solicitations, Drivingit may, at its option: (A) insert an interactive opt-out mechanism and pass the resulting data to client or (B) not provide any Notification Services; and (v) you shall indemnify, defend and hold Drivingit, its affiliates and their officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (A) your failure to obtain prior express consent to contact each of the cell phone numbers delivered by you to Drivingit in connection with the provision of Notification Services or the failure of such consent to comply with any law, rule or regulation; (B) the failure to provide an opt-out mechanism in connection with any Solicitation or the failure of any opt-out mechanism to comply with any law, rule or regulation; or (C) your failure to comply with any third party rights or law, rules or regulations applicable to your systems, materials or programs relating to Notification Services.
14. MISCELLANEOUS
a) If any provision of this Agreement is found to be invalid or unenforceable, then the remainder of this Agreement will have full force and effect, and the invalid provision will be modified, or partially enforced, to the maximum extent permitted to effectuate the original objective. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and merges and supersedes all prior agreements, understandings, negotiations, and discussions. Neither of the parties will be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. Failure by either party to enforce any term of this Agreement will not be deemed a waiver of future enforcement of that or any other term in this Agreement or any other agreement that may be in place between the parties. The section headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. This Agreement is not intended to confer any right or benefit on any third party, and no action may be commenced or prosecuted against a party by any third party claiming as a third-party beneficiary of this Agreement or any of the transactions contemplated by this Agreement. No oral explanation or oral information by either party hereto will alter the meaning or interpretation of this Agreement. No amendments or modifications will be effective unless in a writing signed by authorized representatives of both parties.
