Drizti Inc. TERMS OF USE

Update: 2019-03-28

READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY! IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. DO NOT ACCESS OR USE THE SERVICE OR SOFTWARE UNTIL YOU HAVE CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS. BY ACCEPTING THIS LICENSE AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY USING OR ACCESSING THE SERVICE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

This License Agreement is effective between You and Drizti Inc as of the date You accept it. "You" or "Your" means the person or company for which you are accepting this License Agreement. "We", "Our" and "Us" means Drizti Inc.

NOW, THEREFORE, THIS AGREEMENT WITNESSETH that, in consideration of the mutual covenants contained herein, the Parties hereto agree as follows:

DEFINITIONS
1. Definitions. Capitalized terms in this Agreement will have the following meanings:
SOFTWARE LICENSE, RIGHTS & RESTRICTIONS
1. Software License and Rights. In consideration of the mutual covenants, and subject to the provisions contained in this Agreement, We hereby grant to You a revocable, non-exclusive license to access and use the Licensed Software and Service in accordance with the terms of this Agreement during your Subscription Period.
2. Restrictions. Without limiting the generality of the foregoing, You will use the Licensed Software and Service only for purposes set forth herein, and, further, You expressly agree that You DO NOT have rights to:
  (a) own title, or transfer title to the Licensed Software to another party;
  (b) distribute, or sublicense or otherwise provide copies or any rights in relation to the Licensed Software and Service to any third party;
  (c) pledge, hypothecate, alienate or otherwise encumber the Licensed Software and Service to any third party;
  (d) use the Licensed Software and Service to support business-critical, real-time safety systems or to operate nuclear facilities, life support or other mission critical applications where human life or property may be at stake;
  (e) modify, enhance, reverse-engineer, decompile, disassemble or create substantially derived forms of the Licensed Software;
  (f) make copies of the VMs running the Licensed Software and Service, aside from a backup copy of the original VM which must be under the terms of this agreement.
3. Enforcement of Restrictions. We will have the right to inspect and enforce the restrictions and covenants contained in this Agreement at Your sole expense, and You hereby agree to promptly notify Us of any known violations of such restrictions.
4. Our Obligations. Upon execution of this Agreement, We will:
  (a) permit You to access and use the Licensed Software and Service for Your use under this Agreement during the Subscription Period; and
  (b) provide You with ongoing updates to the Licensed Software and Service as We consider needed during your Subscription Period. In each such case, We will either automatically provide and install the necessary updates or notify You when an update is available. You agree to have a registered account on the HPCBOX software delivery portal available at https://portal.hpcbox.com to be able to receive and get notified of updates.
COPYRIGHT AND MARKS
1. COPYRIGHT. The Licensed Software, including any documentation, media, packaging and illustrations, is copyrighted and constitutes Our valuable property. You agree that all physical manifestations of the Licensed Software will display Our copyright notice in a conspicuous manner. The Licensed Software is protected under Canadian copyright laws and international treaty provisions.
2. Trade-marks. Certain logos, product names and trade-marks owned by Us may be contained within the printed materials and electronic manifestations of the Licensed Software. You will have no right to use such marks in its end-user applications except as set out in the User Agreement.
TITLE
1. Title. You acknowledge that the Licensed Software and Service, including any associated written materials and other documentation provided under this Agreement, belongs exclusively to Us. Unencumbered title to the Licensed Software and Service will, at all times, remain with Us. You agree to protect the Licensed Software and Service from unauthorized use, reproduction, distribution or publication in electronic or physical form.
WARRANTY AND DISCLAIMER
1. Warranty. We warrant that We are the owner of the Licensed Software, and have the right and authority to grant the license to the Licensed Software. We do not warrant, guarantee, accept any condition or make any representation that the Licensed Software and Service will meet Your requirements or that the use of the Licensed Software and Service will be uninterrupted or error-free. No other verbal or written information provided by Us will create a warranty or in any way increase Our liability, and You will not rely on such information.
2. Third parties. The Licensed Software and Service may include components installed or derived from a range of sources, with different License Agreements applicable to its use. We make no warranty that third-party content will be compatible with other software products -- you are not required to use all component parts, but will not unbundle component parts nor repackage parts for redistribution.
3. DISCLAIMER. THERE ARE NO WARRANTIES FOR SERVICES. WE MAKE NO EXPRESS REPRESENTATIONS OR WARRANTIES THAT THE LICENSED SOFTWARE AND SERVICE WILL BE WHOLLY FREE FROM DEFECTS, ERRORS, BUGS AND SECURITY VULNERABILITIES. WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY AND REMEDIES
1. LIMITATION OF LIABILITY. IN NO EVENT WILL WE BE LIABLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL, INCLUDING LOST OR ANTICIPATED PROFITS, SAVINGS, INTERRUPTION TO BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF BUSINESS INFORMATION, THE COST OF RECOVERING SUCH LOST INFORMATION, THE COST OF SUBSTITUTE INTELLECTUAL PROPERTY OR ANY OTHER PECUNIARY LOSS ARISING FROM THE USE OF, OR THE INABILITY TO USE, THE LICENSED SOFTWARE AND SERVICE REGARDLESS OF WHETHER YOU HAVE ADVISED US OR WE HAVE ADVISED YOU OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY IN RESPECT OF ANY AND ALL CLAIMS WILL BE LIMITED TO ONE HUNDRED ($100.00) DOLLARS. THE FOREGOING LIMITATIONS APPLY REGARDLESS OF THE CAUSE OR CIRCUMSTANCES GIVING RISE TO SUCH LOSS, DAMAGE OR LIABILITY, EVEN IF SUCH LOSS, DAMAGE OR LIABILITY IS BASED ON NEGLIGENCE OR OTHER TORTS OR BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM). NEITHER YOU NOR WE MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
2. Dispute Resolution. You acknowledge that We possess valuable confidential and proprietary information, including trade-marks and business practices, which would be damaging to Us if revealed in open court. You further acknowledge and agree that it is preferable to resolve all disputes between Us and You confidentially, individually and in an expeditious and inexpensive manner. We and You accordingly acknowledge and agree that private dispute resolution is preferable to court actions. Before commencing any arbitration in the manner set out in Section 6.3 below, We and You shall first attempt to resolve any dispute or differences between the both of us by way of good faith negotiation. The good faith negotiation shall commence by each of Us and You communicating our position regarding the complaint, claim, dispute or controversy to the other party, and how the both of us should resolve the dispute. We and You shall then make good faith efforts to negotiate a resolution of the claim, dispute or controversy. Neither We nor You shall commence any arbitral proceedings unless and until the good faith negotiation fails.
3. ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS CAPABLE IN LAW OF BEING SUBMITTED TO BINDING ARBITRATION) AGAINST US, Our agents, employees, officers, directors, successors, assigns or affiliates (collectively, for purposes of this paragraph, "Licensor Group") arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships between the parties, whether pre-existing, present or future (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), Licensor Group's advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION UNDER THE ARBITRATION RULES OF THE ADR INSTITUTE OF CANADA, Inc. The Seat of Arbitration will be Toronto, Ontario, Canada. The language of the arbitration will be English. The arbitration will be limited solely to the dispute or controversy between Customer and Licensor Group. Except as may be required by law, neither party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of (all/both) parties.
SUCCESSORS AND ASSIGNS
1. Successors and Assigns. You may not assign Your rights and duties under this Agreement to any party at any time. This Agreement will enure to the benefit of and will be binding on Us and our respective successors and permitted assigns. In the event of corporate merger, amalgamation, divestiture or asset sale, We will have the right to transfer and assign Our rights and obligations hereunder to any third party (the "Assignee"), upon written notice to You, provided that We cause the Assignee to agree in writing to all the terms contained in this Agreement.
UPGRADES AND SUPPORT SERVICES
1. Upgrades. Other than our obligation under Section 2.4(b), We shall have no other obligations to provide updates or support services to You. Obligations or expectations with regard to product upgrades, enhancements, support or remedies for errors, defects or deficiencies will be limited to those expressly set forth in a separate agreement between Us and You. In the absence of such an agreement between Us and You, We will use reasonable efforts to provide ongoing support and remedies to identified errors and defects, on a time and material basis, at Our then current commercial rates.
2. Support Services. Usage of the Licensed Software and Service on Azure entitles you to request support assistance to the level provided with the subscription on Azure Marketplace. You have the option to purchase additional support subscription plans at additional cost. The support plans are outlined in Appendix One. You agree to co-operate with requests to reproduce issues as part of root-cause diagnosis for support.
CONFIDENTIALITY
1. Confidentiality. You acknowledge that the existence of this Agreement, the terms and conditions hereof, the transactions contemplated hereby and other information, including, without limitation, customer, technical and financial information that they have received or will receive in connection with this Agreement, is considered private and confidential (the 'Confidential Information'). You will use reasonable diligence and in no event less than the degree of care which We use in respect to our own confidential and proprietary information of like nature, to prevent the unauthorized disclosure, reproduction or distribution of such Confidential Information to any other individual, corporation or entity. Such Confidential Information will exclude:
  (a) information that is already in the public domain;
  (b) information already known to the receiving party, as of the date of the disclosure, unless the receiving party agreed to keep such information in confidence at the time of its original receipt;
  (c) information hereafter obtained by the receiving party, from a source not otherwise under an obligation of confidentiality with the disclosing party;
  (d) information that the receiving party is obligated to produce under order of a court of competent jurisdiction, provided that the receiving party promptly notifies the disclosing party of such an event so that the disclosing party may seek an appropriate protective order.
TERM
1. Term. The term of this Agreement will commence on the date you purchase access to the Licensed Software and Service via the Azure Marketplace or sign the HPCBOX MANAGED HPC SERVICE AGREEMENT for a fully managed service and shall continue until the date you choose to Terminate.
2. Termination for cause. This agreement may be terminated at Drizti Inc's sole discretion for non-payment or breach of service terms.
FEES AND PAYMENT
1. SERVICE AND SUPPORT FEES. We bill fees and charges monthly. You will pay us the applicable fees and charges for use of the Service and Support, using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new feature of Service will be effective when we post updated fees and charges on the Azure Marketplace and/or Drizti Inc's website and/or inform you directly in the case of a fully managed HPC service unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Licensed Software and Service by giving you at least 30 days' advance notice. We may charge you interest at the highest rate permitted by law on all late payments.
2. TAXES.All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT/GST/HST/PST and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT/GST/HST/PST from You. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing Us with legally-sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify Us and will pay Us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide Us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
GENERAL
1. Consents. Any consent required under this Agreement will not be unreasonably withheld.
2. Captions. The Article and paragraph headings used herein are for convenience only and are not a part of this Agreement and will not be used in construing it.
3. Equitable Relief. You agree that any breach of this Agreement by You would cause irreparable damage, and that, in event of such breach, in addition to any and all remedies at law, We will have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of this Agreement.
4. Force Majeure. Notwithstanding anything herein to the contrary, We shall not be liable for any delay or failure in performance caused by circumstances beyond Our reasonable control.
5. Relationship of the Parties. This Agreement does not constitute a partnership or joint venture, and nothing herein contained is intended to constitute, nor will it be construed to constitute, such a partnership or joint venture. Except as expressly provided in this Agreement, neither We nor You will have any power or authority to act in the name or on behalf of the other party, or to bind the other party to any legal agreement.
6. Severability. The provisions of this Agreement are to be considered separately, and if any provision hereof should be found by any court or competent jurisdiction to be invalid or unenforceable, this Agreement will be deemed to have effect as if such provision were severed from this Agreement.
7. Number and Gender. Where the context permits, the singular includes the plural, and the masculine includes the feminine and vice versa.
8. Notices. For enquiries and further information, the following contact information should be used:
  
  Drizti Inc.
  C208B-777 Bay Street,
  Suite 159
  Toronto ON M5G 2C8
  Canada
  hello@drizti.com
  A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
9. JURISDICTION. THE PARTIES HEREBY IRREVOCABLY ATTORN TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE PROVINCE OF ONTARIO WITH RESPECT TO ANY DISPUTE ARISING HEREUNDER.
10. GOVERNING LAW. THIS AGREEMENT AND ANY SALES THEREUNDER SHALL BE DEEMED TO HAVE BEEN MADE IN THE PROVINCE OF ONTARIO AND SHALL BE CONSTRUED AND INTERPRETED ACCORDING TO THE LAWS OF THE PROVINCE OF ONTARIO AND THE APPLICABLE LAWS OF CANADA. We and You expressly exclude the United Nations Convention on Contracts for the International Sale of Goods, and the International Sale of Goods Act (Ontario), as amended, replaced or re-enacted from time to time.
11. Revisions to this Agreement. We may at any time revise the terms of this Agreement by updating these terms and by providing notice to you of that change.

APPENDIX ONE: HPCBOX SUPPORT SUBSCRIPTION

Support Services
"Initial Response Time" means We have acknowledged the receipt of your support request and made an initial response to you. This does not mean the problem will be resolved within this time period.
"Business Hours" means hours between 08:00 and 17:00 local Toronto(ET) time, excluding Canadian and Provincial public holidays and weekends.
1. Support for Service on Azure Marketplace
  The following is included with your subscription for the Service on Azure Marketplace and as a fully managed HPC service.
  (a) On-boarding: This includes:
      o Online On-boarding meeting to help you get started. This meeting will be a maximum of one hour.
  (b) Self-help and E-mail support
      o Self-help documentation to use the Licensed Software and Service.
      o E-mail support is provided during Business Hours on a best effort basis.
2. Advanced Support
  Customers that require advanced support can opt to purchase an advanced support plan at an additional cost. Every advanced support plan requires a monthly plan subscription and includes a fixed number of support block-of-hours and response time SLAs. Additional support block-of-hours can be purchased at an additional cost. Upon receiving a support request, Drizti Inc. can, upon request from You, estimate the number of hours required for problem determination and/or resolution before proceeding with handling the request. If no such request is made when opening the support request, Drizti Inc. will make every reasonable effort to minimize the number of hours spent on the request. Advanced support plan subscription fees, included block-of-hours and additional block-of-hours are not refundable, however, purchased additional block-of-hours will be valid while you have an active monthly advanced support plan subscription and the block-of-hours is not exhausted.
  1. Gold Support Plan
    Initial Response Time: 24 Business Hours.
    Included block-of-hours: 10 person-hours/Azure Subscription/Month (Cannot be carried over to the next month)
    Additional block-hours: Contact us for pricing.
    
    Gold Support Plan includes:
       (a) Support exclusively for HPCBOX. For example:
          o Cannot access the Service even after System requirements are met.
          o Cannot transfer data to/from the Service even after System Requirements are met.
          o Cannot launch simulation job on the Service.
       (b) Support excludes the following:
          o Support for Azure Services
          o Support for third-party software and services.
  2. Platinum Support Plan
    Initial Response Time: 12 Business Hours.
    Included block-of-hours: 15 person-hours/Azure Subscription/Month (Cannot be carried over to the next month)
    Additional block-hours: Contact us for pricing.
    
    Platinum Support Plan includes everything in the Gold Support Plan plus
    (a) Installation of custom applications and integrations in the Service
    (b) Troubleshooting performance issues and co-ordinating with ISVs support contact for problem determination and resolution.
3. Support Exclusions
  Unless explicitly included in writing by Drizti Inc., the support services provided under the terms of this contract will not include:
     (a) Work to resolve any reported issues that cannot be reproduced on the Service or are caused due to modification of environment by You.
     (b) Recovery or preservation of data from/to any backup system.
     (c) Auditing, defining or implementing any customized information security policy for use on the Service covered by this service agreement. You are solely responsible for security of the computer systems.