This Terms and Conditions Agreement (this “Agreement”) constitute a contract between Druksys, LLC, a Texas limited liability company (“Druksys”) and you the Customer (“Customer”).

Customer and Druksys agree as follows:

1.     DEFINITIONS

1.1.   “Addenda” or “Addendum” means (i) the following Addenda located at druksys.com/privacy and incorporated herein by reference: Service Level Addendum, and Privacy Policy Addendum.

1.2.   “Authorized Users” means the employees, agents, representatives, consultants, or contractors of Customer authorized to use the Services, have been supplied user identifications and passwords by Customer or on Customer’s behalf, and have agreed to the applicable made available through the Service platform.

1.3.   “Customer Content” means all data and materials provided by Customer to Druksys, or uploaded to the Service Platform for use in connection with the Services, including, without limitation, customer, employee, resident, or other data files; documents; graphics; written notes; or any other materials uploaded to the Service Platform by Customer or its Authorized Users.

1.4.   “Invoice” means the document or documents listing the Subscriptions and additional services purchased by Client.

1.5.   “Product Support Services” shall mean the support provided by Druksys to remediate, correct, or abate errors in the Software that is provided as part of the Service as defined in the Service Level Addendum. Support for customer specific configurations and customizations (if any) shall be handled by a separate Invoice executed by the parties.

1.6.   “Services” shall mean the software and infrastructure hosted and maintained by Druksys, including to the specific internet-accessible service identified in the Invoice.

1.7.   “Software” shall mean the object code version of any software solutions or modules to which Customer is provided access as part of the Service, including any updates or new versions.

2.     THE SERVICES

2.1.   The Services. This Agreement sets forth the terms and conditions under which Druksys agrees to license to Customer certain hosted software solutions and modules, and provide services necessary for Customer’s use of such Software including, user identification and password change management, data import/export, monitoring, technical support, maintenance, backup and recovery, and change management as further set forth on the Invoice.

2.2.   License of Services.  During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the Services solely for Customer’s internal business operations and for the number of Authorized Users set forth in the Invoice or otherwise requested by Customer from time to time pursuant to the terms of this Agreement.  Customer acknowledges that this Agreement is a services agreement and Druksys will not be delivering copies of any Software

2.3.   Control and Location of Services. The method and means of providing the Services shall be under Druksys’ exclusive control, management, and supervision, provided however, such methods and means shall be consistent with this Agreement and Addenda, each Addenda as amended by Druksys and to be agreed upon and signed by both parties.

2.4.   Changes in Functionality.  During the Term (defined below) Druksys will not materially reduce or eliminate functionality of the Services set forth on the Invoice and made available to the Customer on the Start Date referenced in the Invoice.  In the event, however, Druksys does reduce or eliminated functionality in the Services, Customer, at Customer’s sole election shall be entitled to immediately terminate this Agreement and receive pro-rata refund of amounts pre-paid for services not used as of the effective date of such termination. Druksys shall have not obligation to provide additional functionalities to the Services during the Term.

2.5.   Beta Services. Druksys may provide features or products that it is still testing and evaluating.  These products and features are identified as alpha, beta, preview, early access or evaluation (or words or phrases with similar meanings) (collectively “Beta Services”). Notwithstanding anything to the contrary in this Agreement or in the Addenda referenced herein, the following terms apply to all Beta Services: (a) Customer may use or decline to use any Beta Services; (b) Beta Services may not be supported and may be changed at any time without notice to Customer; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected.

3.     CUSTOMER RESPONSIBILITIES

3.1.   Assistance. Customer shall provide commercially reasonable information and assistance to Druksys to enable Druksys to deliver the Services. Customer acknowledges that Druksys ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.

3.2.   Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Druksys exercises no control over the content of the information transmitted by Customer or its Authorized Users through the Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

3.3.   Unauthorized Use; False Information. Customer shall: (a) notify Druksys immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Druksys immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any Authorized User, and (c) not provide false identity information to gain access to or use the Services

3.4.   Responsibility for Authorized Users. Customer shall be solely responsible for the acts and omissions of its Authorized Users. Druksys shall not be liable for any loss of data or functionality caused directly or indirectly by Customer’s Authorized Users.  Additionally, Customer shall ensure its Authorized Users comply with Privacy Policy Addendum.  Druksys shall ensure links to current versions of its Terms and Conditions and Privacy Policy are conspicuously referenced on the Services start page.

3.5.   Aggregate Data and Analysis.  Customer agrees that Druksys may aggregate measures of Software and Service usage and performance, that have been stripped by Druksys of all information which alone or in combination with other information may identify Customer, Customer employees, or other individuals, and may freely disclose such aggregate measures of usage and performance and reuse all general knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) acquired during provision of the Services (“General Knowledge”), including General Knowledge that it could have acquired performing the same or similar services for another customer. Customer further agrees that Druksys shall have the right to (a) combine Client Data, which has been stripped by Druksys of all information which alone or in combination with other information may identify Customer, Customer employees, or other individuals, with similar anonymous data from numerous other clients (“Aggregate Data”); and (b) create reports, evaluations, benchmarking tests, studies, analyses, and other work product from Aggregate Data (“Analyses”); provided, however, that Customer data does not comprise more than ten percent (10%) of the Aggregate Data used in connection with any single Analysis. Druksys shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Services and Software.

3.6.   Customer Input. Customer is solely responsible for collecting, inputting and updating all Customer information stored or uploaded in connection with the Services and for ensuring (a) that the Customer Content does not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party or contain anything that is obscene, defamatory, harassing, offensive or malicious, and (b) that Customer has collected and handled all Customer Content in compliance with all applicable data privacy and protection laws, rules, and regulations.

3.7.   License from Customer. Subject to the terms and conditions of this Agreement, Customer shall grant to Druksys a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the Services to Customer.

3.8.   Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Druksys or its licensors retain all ownership and intellectual property rights to the Services, Software programs, and anything developed and delivered under the SaaS Agreement.

3.9.   Suggestions. Druksys shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the operation of the Services.

4.     RESTRICTIONS

Customer shall not, and shall not permit any Authorized User to: (i) copy or republish the Services or Software, (ii) make the Services available to any person other than to another Authorized User, (iii) use or access the Services to provide hosting services to third parties, (iv) modify or create derivative works based upon the Services or related documentation, (v) remove, modify or obscure any copyright, trademark, or other proprietary notices contained in the software used to provide the Services or in the related documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, or (vii) access the Services or use the related documentation in order to build a similar product or competitive product.  Subject to the limited licenses granted herein, Druksys shall own all right, title and interest in and to the Software, Services, related documentation, and other deliverables provide under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.

5.     PAYMENT

5.1.   Fees.  Customer will pay all fees specified in the Invoice.  Except as otherwise specified herein or on an Invoice, (i) fees are based on the number of Authorized Users authorized to use the Services during a billing cycle and not actual use, and (ii) Customer’s payment obligations are non-cancelable and fees paid are non-refundable.  In the event Druksys grants Customer a free trial-period, the Invoice shall indicate (i) the start date for the services and (ii) the date on which the first billing cycle will begin.

5.2.   Billing Cycle.  Druksys will invoice Customer by electronic mail according to the schedule set forth in the Invoice.  All fees are stated in United States Dollars and must be paid by Customer to Druksys in United States Dollars.

5.3.   Taxes.  All monthly fees or charges to Customer for the Services hereunder are exclusive of federal, state, local and foreign sales, use, excise, utility, gross receipts and value added (VAT) taxes and other similar tax-like charges, including tax-related surcharges or applicable tariffs.  In the event Druksys passes such taxes or charges through to Customer, Druksys will bill Customer for such taxes and charges as a separate line item on each invoice.  Druksys shall be solely responsible for any taxes, levies or other charges that arise from the income it receives from Customer hereunder.

5.4.   Suspension for Non-Payment. Druksys reserves the right to suspend delivery of the Services if Customer fails to timely pay any undisputed amounts due to Druksys under this Agreement, but only after Druksys notifies Customer of such failure and such failure continues for fifteen (15) days.  Suspension of Services shall not release Customer of its payment obligations under this Agreement.  Customer agrees that Druksys shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the Services resulting from Customer’s nonpayment.

6.     TERM AND TERMINATION

6.1.   Term of Agreement. The initial term of this Agreement shall begin on the Effective Date (also described as the Start Date on the Invoice) and shall continue until the “End Date” set forth on the Invoice, unless previously terminated by either party as outlined in this Section 6.  The initial term shall automatically renew for a successive term equal in length to the initial term if so indicated on the Invoice.

6.2.   Termination. Either party may terminate this Agreement during the initial term or any successive renewal term immediately upon a material breach by the other party that has not been cured within thirty (30) days after written notice of such breach. In the event the Invoice provides for automatic renewals, Customer may elect to not renew this Agreement or the Services for a renewal term by providing Druksys at least ten (10) days’ written notice prior to the start of such renewal term of its decision not to renew the Services for an additional term.

6.3.   Suspension for Ongoing harm.  Druksys reserves the right to suspend delivery of the Services if Druksys reasonably concludes that Customer or its Authorized User is causing immediate and ongoing harm to Druksys, the Services, Druksys’ other subscribers, or third parties.  In the extraordinary case that Druksys must suspend delivery of the Services, Druksys shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue.  Druksys shall not be liable to Customer or to any third party for any liabilities, claims, damages, or expenses arising from or relating to any suspension of the Services in accordance with this Section 6.3. Nothing in this Section 6.3 will limit Druksys’ rights under Section 6.4 below.

6.4.   Effect of Termination.

6.4.1.     Upon termination of this Agreement, Druksys shall immediately cease providing the Services and all Customer’s usage rights granted under this Agreement shall terminate

6.4.2.     If Druksys terminates this Agreement due to a material, uncured breach by Customer, then Customer shall immediately pay to Druksys all amounts then due. If Customer terminates this Agreement due to an uncured material breach by Druksys, then Druksys shall immediately refund to Customer a pro-rata portion of pre-paid amounts for any unperformed Services scheduled to be delivered after the termination date.

6.4.3.     Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

7.     SERVICE LEVEL AGREEMENT

The Service Level Agreement Addendum sets forth Customer’s sole remedies for availability and quality of the Services, including any failure to meet any guarantee set forth in such Addendum.

8.     WARRANTIES

8.1.   Warranty. Druksys represents and warrants that (i) it has validly entered in this Agreement and has the legal power to do so, and (ii) it will provide the Services in a professional manner consistent with general industry standards. For any material breach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and Termination.

8.2.   DISCLAIMER. DRUKSYS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT DRUKSYS WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT SERVICE PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SERVICE PROVIDER (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS SAAS AGREEMENT. NEITHER SERVICE PROVIDER NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL SERVICE PROVIDER OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.

9.     LIMITATION OF LIABILITY.

9.1.   NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF SERVICE PROVIDER) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restrictions,” “Indemnification,” or “Confidentiality.” 

10.  INDEMNIFICATION

10.1.                Indemnification by Druksys. If a third party makes a claim against Customer that the Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Druksys’ negligence or willful misconduct has caused bodily injury or death, Druksys shall indemnify and hold harmless Customer and its directors, officers and employees against all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Druksys, to the extent arising from the claim. Druksys shall have no liability for any claim based on (a) the Customer Content, (b) modification of the Services not authorized by Druksys, or (c) use of the Services other than in accordance with the Documentation and this Agreement. Druksys may, at its sole option and expense, procure for Customer the right to continue use of the Services, modify the Services in a manner that does not materially impair the functionality, or terminate the Agreement and repay to Customer any amount paid by Customer with respect to the Term following the termination date.

10.2.                Indemnification by Customer.  Customer shall indemnify, defend and hold Druksys and each of its directors, officers, employees, agents and assigns harmless from and against any and all claims, losses, damages and expenses (including reasonable attorneys’ fees) arising in connection with an allegation by a third party that that the Customer’s Content infringes any patent, copyright, trademark or other intellectual property right, or misappropriates any trade secret, of a third party.

10.3.                Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

11.  CONFIDENTIAL INFORMATION.

11.1.                Each party receiving information from the other party (“Receiving party”) agrees to keep Confidential Information of the disclosing party (“Disclosing party”) in strict confidence, not to use such Confidential Information for any unauthorized purpose and not to disclose such Confidential Information to third parties, except for Affiliates, agents and contractors who are subject to confidentiality requirements that are no less stringent than this provision. Receiving party shall not disclose Confidential Information to any third party unless authorized in advance in writing. Receiving party shall not disclose Confidential Information to its employees, except on a “need to know” basis where such disclosure is necessary and required to exercise its rights and perform its obligations under the Agreement.

If Confidential Information is required to be disclosed pursuant to a valid order created by a court or government agency, the Receiving party shall provide prior written notice to the Disclosing party of such obligation and the opportunity to oppose such disclosure. Receiving party shall promptly notify Disclosing party in the event of any unauthorized use or disclosure of the Confidential Information. Receiving party shall not use Confidential Information except as necessary and required to fulfill its obligations under this Agreement. Such obligations of non-disclosure and non-use shall exist during the term of this Agreement and for a period of three (3) years after the termination of this Agreement.

Each party acknowledges that breach of this Section 15 may cause irreparable harm to the Disclosing party entitling the Disclosing party to apply for injunctive relief, among other remedies. All Confidential Information shall remain the exclusive property of the Disclosing party, and the Receiving party shall have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein. No patent, copyright, trademark or other proprietary right is licensed, granted otherwise conveyed by this Agreement with respect to the Confidential Information, except as expressly provided in this Agreement.

11.2.                For purposes of this Agreement, “Confidential Information” means information disclosed hereunder, by either party or its Affiliates to the other or its Affiliates whether written or oral, that is designated as “Confidential”, “Proprietary” or some similar designation. Confidential Information may also include information disclosed orally, provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the disclosing party and delivered to the other party within 30 days after disclosure.

Confidential Information shall include but not be limited to non-public information regarding the Platform and/or Documentation, party’s products, services, data, systems, networks, procedures, financial data, suppliers, marketing efforts, pricing, operating procedures, future plans, trade secrets and other information.

Confidential Information does not include information which: (a) was generally known and available in the public domain at the time it was disclosed, or becomes generally known and available in the public domain without breach of this Agreement or similar agreement by a third party and through no fault of the Receiving party or its Affiliates, or its or their employees, agents, contractors, successors or assigns; (b) was rightfully in the legitimate possession of or was known to the Receiving party at the time of disclosure without any obligation of confidentiality; (c) was independently developed by Receiving party without the use of or reliance on any Confidential Information of Disclosing party, as shown by written records prepared contemporaneously with such independent development; or (d) becomes known to Receiving party lawfully from a third party who has no obligation of confidentiality to Disclosing party and there is no restriction on such third party’s or the Receiving party’s rights to disseminate the information.

12.  MISCELLANEOUS.

12.1.                Non-Exclusive Service.  Customer acknowledges that Services are provided on a non-exclusive basis.  Nothing shall be deemed to prevent or restrict Druksys’ ability to provide the Services or technology to other parties.

12.2.                No Assignment. No rights or obligations of, or services to be rendered by a party under this Agreement shall be assigned, transferred or subcontracted to any third party without the prior written consent of the other party, which shall not be unreasonably withheld.  This Agreement shall be enforceable against any permitted assignees.

12.3.                Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party.  The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

12.4.                Headings. The headings of the sections are inserted for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of the Agreement.

12.5.                Force Majeure.  Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, third-party equipment failures, riots, acts of terrorism or war, epidemics, communication line or network failures, and power failures.

12.6.                Severability. If any provision or portion of this Agreement shall be held invalid or unenforceable, the remainder of the Agreement shall not be affected thereby and the remaining terms shall continue in effect and be binding on the parties, provided that such holding of invalidity or unenforceability does not materially affect the essence of the Agreement.

12.7.                In the case of a conflict between provisions in the terms and conditions of this Agreement and any Addendums attached hereto, the Addendums shall take precedence with respect to the subject matter of the Addendums.

12.8.                Other than the rights granted to Customer herein, neither party shall use trade names, business names, designs, logos, or marks of the other party unless permission has been provided via prior written approval.

12.9.                The parties will comply with all local, municipal, state, country, federal and other applicable governmental laws, orders, codes and regulations, including any applicable export compliance laws, in the performance of this Agreement.

12.10.             This Agreement does not create any agency, partnership, or joint venture between Licensor and Licensee, who are independent entities. The Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, discussions, and proposals regarding its subject matter. The Agreement may be modified only in a writing signed by both parties hereto. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement.

13.  CHOICE OF LAW AND VENUE. This Agreement shall be exclusively governed by, construed, and enforced in accordance with, and subject to, the laws of the State of Texas or federal law, where applicable. The sole, exclusive and mandatory venue for any disputes arising from or concerning this Agreement shall be in the state or federal courts located in Bexar County, Texas.  The parties hereby consent to trial without a jury on all matters litigated in connection with this Agreement.

14.  GENERAL PROVISIONS.

14.1.                Complete Agreement: This Agreement together with the Invoice and all Addenda referred to herein, all of which are incorporated herein by reference, constitutes the sole and entire Agreement between the parties. This Agreement supersedes all prior understandings, agreements, representations and documentation relating to the subject matter of this Agreement.

14.2.                Modifications: Modifications and amendments to this Agreement, including any addendums, schedule or attachment hereto, shall be enforceable only if in writing and signed by authorized representatives of both parties.

14.3.                Notices: All notices and other communications given in connection with this Agreement shall be in writing and shall be deemed given as follows:

– When delivered personally to the recipient’s address as appearing in the introductory paragraph to this License;

– Three days after being deposited in the United States mail, postage prepaid to the recipient’s address as appearing in the introductory paragraph to this Agreement; or

– When sent by fax, telex, or electronic mail to the last fax, telex number, or electronic mail address of the recipient known to the party giving notice. Notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first-class or certified mail or the recipient delivers a written confirmation of receipt.

Any party may change its address appearing in the introductory paragraph to this Agreement by given notice of the change in accordance with this paragraph.

14.4.                No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

15.  Service Level Agreement Addendum

During the Initial Term and any subsequent Renewal Terms, the Services will be operational and available to Customer and its Authorized Users at least 99.5% of the time in any calendar month (the “Performance Commitment”). If Druksys does not meet the Performance Commitment, and if Customer meets its obligations under this SLA, Customer will be eligible to receive the Service Credit defined below. This SLA sets forth Customer’s sole and exclusive remedy for any failure by Druksys to meet the Performance Commitment.

15.1.                Definitions. The following definitions shall apply to the Performance Commitment.

15.1.1.     “Downtime” means the period during which the Platform is unavailable to Customer in accordance with this SLA.

15.1.2.     “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime in a calendar month, divided by the total number of minutes in a calendar month.

15.1.3.     “Service Credit” means the following:

Monthly Uptime Percentage Credit of the Monthly pro rata share of the Services Fee

2. Customer Must Request Service Credit. In order to receive the applicable Service Credit described above, Customer must notify Druksys within ten (10) days from the time Customer becomes eligible to receive such Service Credit.

3. Maximum Service Credit. The aggregate maximum number of Service Credits to be issued by Druksys to Customer for any and all Downtime that occurs in a single calendar month shall not exceed thirty percent (30%) of the monthly pro-rata share of the Monthly Subscription Fee.

4. Namely Performance Commitment Exclusions. The Performance Commitment does not apply to (a) Downtime related to scheduled maintenance; (b) Downtime related to any matter constituting force majeure; (c) Downtime resulting from acts by Customer or its Authorized Users other than in accordance with the Terms and Conditions Agreement, or Privacy Policy Addendum (collectively, the “Terms”) and , including but not limited to any negligence, willful misconduct, or use of the Software or the Services in breach of the Terms; and (d) Downtime resulting from data or transmission quality issues outside of Druksys’ reasonable control. Druksys at its sole discretion may plan scheduled maintenance which will be communicated by email or via the Service to Customer at least twenty-four (24) hours in advance with notice of how many hours of Downtime is expected. The time and day of the scheduled maintenance may be changed at the sole discretion of Druksys subject to the minimum notice specified in the prior sentence.

5. Termination. In the event that Druksys materially breaches this Agreement by not meeting the Performance Commitment in any three (3) months in a twelve (12) month period, Customer may terminate these Terms and any related Invoice upon fifteen (15) days prior written notice to Druksys.