- Copyright © 2024 Dripcel.
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- 138 West St, Sandton, Johannesburg, 2031.
- 8375 International dr., Orlando, Fl, 32819
GENERAL TERMS AND CONDITIONS
Version 1 – Date of release: 22 May 2024.
GENERAL TERMS AND CONDITIONS FOR DRIPCEL SERVICES (“GTC”)
Capitalized terms are defined in the Glossary at the end of this document.
Subject to the terms of the Agreement, Dripcel will provide the Customer with access to the Service.
Dripcel grants the Customer a non-exclusive, non-transferable license to use the Service as outlined in the Agreement, exclusively for the Customer’s internal business operations.
With respect to the Service, Customer shall not:
(a) Disassemble, decompile, reverse-engineer, copy, translate, or create derivative works, except where such rights cannot be legally waived.
(b) Market, rent, sell, lease, or use the Service for non-civilian purposes.
(c) Transmit any content or data that is unlawful, including but not limited to unlawful voice calls or any content that infringes intellectual property rights.
(d) Circumvent or jeopardize Dripcel’s operations or security.
Dripcel may, but is not obligated to, monitor the use of the Service (to the extent permitted by applicable law):
(a) To comply with applicable laws, regulations, or other governmental requests or orders, including disclosing Customer Data as required by such laws, regulations, requests, or orders.
(b) To verify Customer’s adherence to the Agreement.
(c) To protect the integrity of its systems and networks, as well as those of its suppliers.
(d) As necessary for the provision and support of the Service.
(e) As otherwise approved or requested by the Customer.
The Customer shall promptly provide any information requested by Dripcel related to Customer Data or Customer’s use of the Service for the following purposes:
(a) To verify Customer’s compliance with the Agreement.
(b) In response to any requests from regulatory, governmental, or statutory bodies.
The Customer shall comply with, and use the Service in accordance with, the operating guidelines and policies relating to the use of the Services.
Dripcel may suspend use of the Service for the following reasons:
(a) To comply with applicable laws or regulations.
(b) To perform maintenance (planned or emergency) or repairs to the Dripcel Network.
(c) If use poses a threat to the integrity or continued operation of the Dripcel Network or any part of it.
(d) If use breaches the Agreement or otherwise exposes Dripcel to legal liability.
(e) At Dripcel’s sole discretion, if not suspending would cause material harm to the Services or Dripcel’s provision thereof.
(f) If Dripcel is unable to provide the Service due to a termination or alteration of its relationship with any third party, or the termination or suspension of any necessary license or authorization.
Dripcel will promptly notify the Customer (email permitted) of any suspension. Dripcel will strive to limit the suspension in time and scope as reasonably possible under the circumstances and will resume the Service once the cause of the suspension is remedied. If the suspension is due to the Customer’s actions or inactions, Dripcel will resume the Service once the Customer remedies the cause and pays any applicable reconnection charge, or reimburses Dripcel for all reasonable costs and expenses incurred in resuming the Service. Dripcel may terminate the Agreement if the Customer does not remedy the cause of the suspension within thirty (30) days.
The Service may incorporate integrations with third-party web services, software, and applications that are accessed through the Service. These integrations are subject to the terms and conditions set by those third parties.
Dripcel implements measures to detect and prevent fraud and illegal activities during the use of the Service. These measures include, but are not limited to, the verification of links inserted by the Customer. However, Dripcel does not guarantee the ability to block or prevent the transmission of fraudulent messages or voice calls. It is the Customer’s responsibility to ensure that its account is not used for transmitting fraudulent messages or voice calls. Instances of fraud, including artificial inflated traffic originating from the Customer, will not exempt the Customer from its payment obligations under the Agreement.
Dripcel grants access to the Service as outlined in the Order Form.
Dripcel offers support for the Service as specified in the Order Form.
(a) Dripcel reserves the right to modify the Service. Customers will be notified of such modifications via email, support portal, release notes, Documentation, or directly through the Service. If the modification extends beyond mere enhancements, notification will be sent by email. These modifications may include optional new features for the Service, which Customers can use subject to the current Supplement and Documentation.
(b) Should the Customer find that a modification by Dripcel has a materially adverse impact on their use of the Service and is not acceptable for legitimate business reasons, they may terminate their access to the affected Service by providing written notice to Dripcel within thirty (30) days of receiving such modification notice.
Notwithstanding any provision to the contrary in the Agreement, Dripcel shall not be held liable for any failure to perform or any delay in performing an obligation under the Agreement if such failure or delay results from or is connected to the occurrence of an Excluded Event.
Customer shall:
(a) The Customer must adhere to all relevant laws and regulations concerning the Customer Data and the Customer’s utilization of the Service, encompassing telecommunications regulations, export control laws, economic, trade, and financial sanctions, as well as any administered restricted state lists or restrictive measures.
(b) The Customer is obligated to continue obtaining all requisite permits, consents, rights, authorizations, or certifications for the utilization of the Service, including, but not limited to, any Customer Data transmitted as part of such usage.
(c) The Customer must promptly comply with any directives or orders issued by governmental or regulatory authorities regarding the Customer Data or the utilization of the Service. Furthermore, the Customer shall collaborate with Dripcel’s requests for assistance in aligning the Service with any new requirements or determinations.
Customer is solely responsible for all Customer Data. Customer:
(i) Grants Dripcel (including its Affiliates and subcontractors) a nonexclusive, worldwide right to use, modify, adapt, and process Customer Data to analyze, develop, test, operate, provide, and support the Services and/or any products of Dripcel and its Affiliates.
(ii) Acknowledges that neither Dripcel, its Affiliates, nor their respective suppliers exercise any control over Customer Data and act as mere or passive conduits in transmitting and handling Customer Data.
Customer acknowledges and agrees that any Messages sent through Dripcel are deemed to have been sent and/or authorized by the Customer.
Customer shall collect and maintain all Personal Data necessary to utilize the Service and secure all required consents associated with such Personal Data, ensuring compliance with applicable Data Protection Laws.
The Customer shall reasonably cooperate with Dripcel in the supply and support of a Service, including during any diagnostic, maintenance, or upgrade activities.
The Customer assumes full responsibility for the installation, configuration, security (including firewall protection), and integrity of all facilities, systems, equipment, proxy servers, software, networks, network configurations, and related components (“Customer Equipment”) utilized jointly with the Service(s) provided by Dripcel. This responsibility encompasses ensuring the Customer’s connectivity to any third party. The Customer is required to uphold reasonable security standards to safeguard the Dripcel Network from unauthorized access, including protecting Customer passwords from disclosure or access by third parties. Prompt notification to Dripcel is mandatory upon the Customer’s awareness of any potential or actual unauthorized use, misuse, or access of the Service.
The Customer assumes full responsibility for all disaster recovery, business continuity, and backup arrangements related to its own equipment and all Customer Data.
Dripcel may provide the Customer with an account for non-productive testing, demonstration, and evaluation of certain Services. The terms of the Agreement will govern the Customer’s use and access to this test account and test Services. The Customer must ensure that these are used strictly for non-production testing, demonstration, and evaluation, and not for any productive, commercial, or other purposes. The Customer shall not connect the test Services to a live IT environment. The Customer must adhere to any relevant instructions or protocols provided by Dripcel regarding the test account and test Services. Dripcel retains the right to withdraw the test account and test Services at any time, with or without notice to the Customer.
The Customer agrees to pay the fees outlined in the Order Form. Should there be nonpayment, Dripcel may, after giving prior written notice, suspend the Customer’s access to the Service until payment is made. The Customer is not allowed to withhold, reduce, or offset fees due during the Term. For any invoice not settled by its due date, interest will accumulate on the unpaid amount at the highest allowable rate. Fees will be determined based on data recorded or logged by Dripcel, not by the Customer’s records. Invoices issued by Dripcel are final, conclusive, and binding, although the Customer may dispute an invoice in writing and in good faith within thirty (30) days of the invoice date. The Customer must still promptly pay any undisputed portion of the invoice. Dripcel’s failure or delay in issuing an invoice does not prevent Dripcel from doing so later, nor does it relieve the Customer of their obligation to pay.
Unless otherwise specified in an Order Form, the fees and charges listed do not include taxes, such as withholding taxes, which are the Customer’s responsibility. The Customer is liable for all taxes, including withholding taxes, except for Dripcel’s income and payroll taxes. If Dripcel is required to pay any taxes (other than its income and payroll taxes), the Customer must reimburse Dripcel for those amounts and indemnify Dripcel for any taxes and related costs that Dripcel has paid or is obligated to pay attributable to those taxes.
Dripcel reserves the right, without prior notice to the Customer, to offset any amounts the Customer owes under this Agreement and/or any other agreement with Dripcel against any amounts Dripcel owes to the Customer, regardless of the place of payment or the currency of such obligations.
The duration of this Agreement shall be as specified in the Order Form.
Either party may terminate this Agreement:
(a) upon thirty (30) days written notice to the other party in the event of a material breach, unless the breach is remedied within that thirty-day period;
(b) as allowed under Sections 3.3(b), 6.3(b), or 8.1(c), with termination becoming effective thirty (30) days after receipt of notice in each of these cases; or
(c) immediately if the other party files for bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 13.6.
In addition to the termination rights specified in Section 6.2, Dripcel reserves the right to terminate the Agreement or any specific Service under the following conditions:
(a) if any relationship with a network operator, third-party subcontractor, supplier, or interconnected carrier is terminated, or if support for necessary equipment or components is discontinued;
(b) if there are any legal, regulatory, or governmental prohibitions or limitations affecting the Service; or
(c) upon the expiration or termination of any license required to provide the Service.
Dripcel will make reasonable efforts to limit the termination in time and scope based on the circumstances. Furthermore, Dripcel may immediately terminate the entire Agreement without prejudice to other clauses or applicable legislation if any illegal practice or fraudulent use of the Service is confirmed.
Upon the effective date of expiration or termination of the Agreement:
(a) Customer’s right to use the Service and all Dripcel Confidential Information will terminate;
(b) Dripcel will stop providing the applicable Service;
(c) The disclosing party’s Confidential Information will be returned or destroyed as instructed in writing by the disclosing party;
(d) Customer shall promptly pay all outstanding amounts due to Dripcel under the Agreement; and
(e) The termination or expiration of the Agreement will not affect other agreements between the parties.
Sections 1, 2.4, 2.5, 5, 6.4, 6.5, 8, 9, 10, 11, and 13 will remain in effect even after the expiration or termination of the Agreement.
Each Party guarantees its ongoing adherence to all laws and regulations relevant to its operations, specifically (i) for Dripcel, regarding the conduct of Dripcel’s business in relation to the Service, and (ii) for the Customer, concerning the Customer Data and the Customer’s use of the Services.
Except as explicitly stated in the Agreement, neither Dripcel nor its subcontractors make any representations or warranties, and Dripcel and its subcontractors disclaim all representations, warranties, terms, conditions, or statements that might otherwise arise between the parties or be implied into this Agreement or any related contract, whether by statute, common law, or otherwise. This includes, to the fullest extent permitted by law, the implied conditions, warranties, or other terms regarding merchantability, suitability, originality, or fitness for a particular use or purpose. Additionally, except as explicitly stated in this Agreement, neither Dripcel nor its subcontractors make any representations, warranties, terms, conditions, or assertions concerning non-infringement or the outcomes to be obtained from the use or integration with any products or services provided under the Agreement. They also do not guarantee that the operation of any products or services will be secure, uninterrupted, or error-free. Customer acknowledges that (i) the Service is not specifically tailored to meet its, its customers’, or end-users’ unique requirements, and (ii) the Service may experience errors, interruptions, or unauthorized access. Except as expressly stated in this Agreement, the Service is provided on an ‘as is’ and ‘as available’ basis.
(a) Dripcel will defend Customer against claims made by third parties alleging that Customer’s use of the Service infringes or misappropriates patent claims, copyrights, or trade secret rights. Dripcel will indemnify Customer for all damages finally awarded against Customer (or the amount of any settlement Dripcel agrees to) in connection with these claims.
(b) Dripcel’s obligations under Section 8.1 will not apply if the claim arises from (i) Customer’s breach of the Agreement; (ii) use of the Service in conjunction with any product or service not provided by Dripcel; or (iii) use of the Service provided at no cost.
(c) If a claim described in Section 8.1(a) is made or appears likely to be made, Dripcel may (i) obtain for Customer the right to continue using the Service under the Agreement terms; or (ii) replace or modify the Service to make it non-infringing without significantly reducing its functionality. If these options are not reasonably available, either Dripcel or Customer may terminate Customer’s access to the affected Service with written notice to the other party.
(a) Customer shall promptly notify Dripcel in writing of any claim.
(b) Dripcel shall have the right to fully control the defense of the claim, including delegating the defense to a third-party insurer or indemnifier if deemed appropriate.
(c) Customer shall fully cooperate in the defense of the claim and refrain from taking any action that might prejudice Dripcel’s rights.
(d) Customer shall not take any action in response to any infringement or misappropriation, or alleged infringement or misappropriation, that could prejudice Dripcel’s rights.
8.3 Exclusive Remedy.
The provisions outlined in Section 8 constitute the sole, exclusive, and comprehensive liability of Dripcel, its Affiliates, and subcontractors to the Customer. This serves as the Customer’s only remedy concerning third-party claims and issues related to the infringement or misappropriation of third-party intellectual property rights.
Neither party shall exclude or limit its liability for damages arising from:
(a) Dripcel’s obligations specified under Section 8.1(a);
(b) Customer’s obligations under any Indemnity clause;
(c) Unauthorized access or divulgence of Confidential Information;
(d) Fraud or fraudulent misrepresentation;
(e) Death or bodily injury caused by either party’s gross negligence or willful misconduct;
(f) Customer’s failure to pay any fees due under the Agreement; or
(g) Any liability that cannot be excluded or limited under applicable law.
Subject to Sections 9.1 and 9.3, no matter the circumstances or type of claim, the total combined liability of either party (including its respective Affiliates or Dripcel’s subcontractors) to the other party or its Affiliates or any other individual or entity arising from or related to this Agreement, encompassing but not limited to liability for breach of contract, tort (including negligence), misrepresentation (whether tortious or statutory), breach of statutory duty, breach of warranty, claims by third parties resulting from any significant or minor breach of this Agreement (regardless of intent), or from willful misconduct or otherwise, shall not exceed USD 10,000 for all occurrences within any twelve (12) month period. Each “twelve (12) month period” begins on the Term start date or any yearly anniversary thereof.
Subject to Section 9.1:
(a) Neither party, nor its Affiliates or Dripcel’s subcontractors, shall be liable to the other party, its Affiliates, or any third party for any of the following types of loss or damage arising under or related to this Agreement, regardless of whether advised of the possibility of such losses and irrespective of the cause of action (whether in contract, tort (including negligence), misrepresentation (whether tortious or statutory), breach of statutory duty, breach of warranty, or other):
(i) loss or inaccuracy of data,
(ii) loss of profits,
(iii) loss of business,
(iv) business disruption,
(v) loss of contracts,
(vi) loss of revenue,
(vii) loss of anticipated savings,
(viii) loss of goodwill,
(ix) loss of reputation,
regardless of whether these types of losses are direct, indirect, special, or consequential; or
(b) any special, incidental, consequential, or indirect losses or damages, including exemplary or punitive damages.
Dripcel will not be liable for any damages caused by any Service provided at no cost.
The Agreement allocates the risks between Dripcel and the Customer. The fees for the Service are reflective of this risk allocation and the limitations on liability outlined within the Agreement.
Dripcel, its Affiliates, or licensors hold all intellectual property rights pertaining to the Service, Documentation, design contributions, related knowledge or processes, and any derivative works thereof. This includes any feedback provided by the Customer about the Service during its use. All rights not expressly granted to the Customer are reserved by Dripcel, its Affiliates, and its licensors.
As between Customer and Dripcel, the Customer retains all rights in and related to the Customer Data.
Customer agrees, on behalf of itself and its successors and assigns, not to assert any claims or rights against Dripcel, its Affiliates, or licensors, regarding any aspect of the Service or Documentation.
(a) The receiving party will treat all Confidential Information from the disclosing party with strict confidentiality, at least to the same extent as it protects its own Confidential Information, and not less than a reasonable standard of care. The receiving party will not disclose any Confidential Information to anyone other than its personnel, representatives, or those of its Affiliates who need access to perform obligations under the Agreement and who are bound by obligations of non-disclosure and non-use at least as stringent as those in Section 11. Customer will not disclose the Agreement or pricing to any third party.
(b) Confidential Information disclosed by either party before the execution of the Agreement will also be subject to Section 11.
(c) Upon request by the disclosing party, the receiving party will promptly return or destroy all Confidential Information.
The restrictions on the use or disclosure of Confidential Information will not apply to any Confidential Information that:
(a) is independently created by the receiving party without using the disclosing party’s Confidential Information;
(b) becomes publicly available through no fault or breach of the Agreement by the receiving party;
(c) was known to the receiving party without any confidentiality obligations at the time of disclosure; or
(d) is explicitly agreed in writing by the disclosing party to be free from confidentiality restrictions.
The receiving party may disclose Confidential Information in response to a lawful requirement or request from a court or governmental agency (including in accordance with stock market regulations); provided that, prior to making any disclosure, the receiving party will (a) provide the disclosing party with written notice, to the extent commercially practicable and not otherwise prohibited by law, sufficient to allow the disclosing party to seek a protective order or other appropriate remedy, and (b) disclose only the portion of the Confidential Information required to comply with such legal requirement, based on advice of its counsel, and will use commercially reasonable efforts to secure confidential treatment for any Confidential Information so disclosed.
Neither party will use the other’s name in publicity activities without prior written consent, except that Customer agrees Dripcel may use Customer’s name and logo in customer listings, quarterly investor calls, or mutually agreed marketing efforts, including reference calls, testimonials, and site visits. Customer also agrees that Dripcel may share Customer information with its Affiliates for marketing and business purposes and has secured proper authorizations to share Customer employee contact information with Dripcel.
The Customer acknowledges that Dripcel operates autonomously as a Data Controller concerning the processing of Personal Data essential for delivering its communication services and conducting vital functions and operations as a communication services provider. This encompasses requisite actions to combat spam and fraud, as well as measures for network control, security, and maintenance, business management, and compliance functions, all in accordance with its obligations under relevant laws, including Data Protection Law.
When Dripcel engages in the processing of Personal Data on behalf of the Customer (in accordance with Data Protection Law), Dripcel may assume the role of Data Processor, while the Customer assumes the role of Data Controller as delineated within this Agreement and the relevant Data Processing Addendum (DPA) governing the service.
(a) Both parties consent to the applicability of the DPA when Dripcel acts as a Data Processor under the purview of applicable Data Protection Law.
(b) Each Party pledges adherence to relevant Data Protection Law. The Customer bears the responsibility of formally notifying Dripcel, in written form, regarding the Data Protection Law pertinent to the processing of Personal Data for which the Customer serves as the Data Controller and Dripcel as the Data Processor.
(c) The Customer guarantees and undertakes to possess and uphold all requisite rights, licenses, and consents necessary for furnishing Dripcel with Customer Data. Dripcel reserves the right to request evidence thereof whenever deemed necessary and in alignment with the provisions outlined in the Agreement.
(d) The Customer acknowledges and consents to Dripcel’s retention, storage, utilization, and disclosure of Customer Data to the extent indispensable for the provision and enhancement of the Services, as well as for compliance with relevant legal, accounting, or regulatory obligations. Dripcel will institute procedures to ensure conformity with applicable laws.
Should any provision of the Agreement be deemed invalid or unenforceable, such invalidity or unenforceability shall not impact the validity or enforceability of the remaining provisions of the Agreement.
The waiver of any breach of the Agreement shall not constitute a waiver of any other breach thereof.
Electronic signatures conforming to relevant legal requirements shall be regarded as original signatures.
Dripcel Confidential Information is bound by the export control regulations of multiple nations. The Customer agrees not to present Dripcel Confidential Information to any governmental body for licensing assessment or other regulatory authorization, and further commits not to export Dripcel Confidential Information to countries, individuals, or entities if such export is prohibited by export laws.
All notices shall be provided in writing and considered delivered upon receipt at the address specified in an Order Form, with a copy sent to the legal department. Dripcel may issue notices regarding the operation or support of the Service, as well as other permissible notifications outlined in the GTC or an Order Form (including, but not limited to, those under Sections 2.7 and 5.1 of this GTC), via email to the Customer’s authorized representative or administrator. Such notices via email shall be deemed delivered upon transmission from Dripcel’s email server.
Customer is prohibited from assigning or transferring the Agreement (or any of its associated rights or obligations) to any third party without prior written consent from Dripcel. However, Dripcel retains the right to assign the Agreement to any of its Affiliates. Any attempted assignment in contravention of this Section shall be deemed void from the outset.
Dripcel reserves the right to subcontract certain components of the Service to third parties. Dripcel assumes responsibility for any breaches of the Agreement resulting from actions of its subcontractors. Additionally, nothing within the Agreement shall hinder Dripcel from entrusting the fulfillment of any or all of its obligations under this Agreement to any Affiliate.
The parties are regarded as independent contractors, and the Agreement does not establish any partnership, franchise, joint venture, agency, fiduciary, or employment relationship between them.
Unless explicitly stated otherwise in this Agreement, no third party shall be considered a third party beneficiary or entitled to any rights under this Agreement, including but not limited to the right to enforce any provision herein. Additionally, under this Agreement, any liability, loss, or damage experienced by an Affiliate of Dripcel concerning the provision or utilization of the Service by the Customer pursuant to this Agreement shall be deemed as a liability, loss, or damage incurred by Dripcel.
The Agreement stipulates that any delay in performance, excluding delays related to payment obligations, resulting from circumstances beyond the reasonable control of the performing party, shall not be construed as a breach of the Agreement. In such cases, the time allotted for performance shall be extended by a duration equivalent to the period during which performance was hindered by said conditions.
In addition to adhering to the terms of this Agreement, the Parties commit to complying with all relevant Anticorruption and Bribery legislation. Neither party, nor its officers, directors, employees, agents, affiliates, delegates, or representatives, shall engage in or authorize the direct or indirect payment of any form of monetary compensation, gift, or other benefit to officials or employees of private organizations or companies, governmental or state agencies, agencies or companies majority-owned by a governmental body, public organizations, candidates for public office or political parties, members of political parties, individuals acting in an official governmental capacity, or any person or entity acting on behalf of the aforementioned parties, for the purpose of influencing any action or decision, whether to gain a commercial advantage or to secure or maintain business, or to steer transactions for any individual. Furthermore, the Parties agree to maintain accurate and fair books, records, and accounts that adequately reflect the transactions conducted and the disposition of assets. They also pledge to retain and furnish, upon request, information reasonably necessary to verify compliance with this provision.
Customer acknowledges that the products provided by Dripcel under this Agreement may be subject to control under relevant export and import regulations or sanctions laws. To export, transfer, or import any Hardware, Software, or Documentation, Customer may need an export or import license from a government authority. Customer affirms that it is not listed on any sanction lists such as the EU restrictive list or the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons. Customer warrants that it will utilize the products solely for civil and peaceful purposes and will not employ them in the development or production of conventional weapons, or nuclear, chemical, biological weapons, or missiles. This Agreement shall not be interpreted as obligating either Party to directly or indirectly engage in the export, re-export, transfer, or use of goods, technology, software, or services prohibited by applicable export control or sanctions laws.
This Agreement, the Services, and electronic communications and transactions conducted via the Website shall be governed by and construed in accordance with the laws of South Africa. Any unresolved disputes concerning this Agreement or the Services shall first be referred to confidential arbitration in accordance with the rules of the Arbitration Foundation of South Africa before resorting to court action, with such arbitration to be conducted in English. Accessing the Website and using the Services in territories or countries where such actions are illegal is strictly prohibited. The User agrees not to use this Website in violation of South African export laws and regulations. Additionally, the User must ensure that any communications sent through Dripcel’s Services comply with the local laws of the recipient and do not infringe upon their rights. Users in the European Union must adhere to all applicable laws, directives, and Codes of Conduct, including but not limited to, EU Directives such as 2002/58/EC, 2000/31/EC, 95/46/EC, and 93/13/EC, as well as relevant national member state laws and the Mobile Marketing Association Code of Conduct available at http://www.mmaglobal.com. Users of the Services must also comply with any applicable code of conduct for the wireless industry to which Dripcel is subject, including the Wireless Applications Service Provider (WASPA) Code of Conduct located at http://www.waspa.org.za/code/codeconduct.shtml.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) are excluded from application to this Agreement. Any claim relating to the Agreement and its subject matter must be initiated within one (1) year from the date when the party became aware, or should have become aware with reasonable investigation, of the facts giving rise to the claim. However, Dripcel reserves the right to initiate enforcement proceedings and enforce payment obligations against the Customer in any jurisdiction.
The Agreement represents the entire and exclusive understanding between Dripcel and Customer regarding the subject matter therein and supersedes all prior agreements, arrangements, and understandings between the parties on that matter. Each party acknowledges that they have not relied on any representations, discussions, collateral contracts, or other assurances outside of those expressly outlined in the Agreement. Both parties waive all rights and remedies that might otherwise be available to them concerning any such representations, discussions, collateral contracts, or other assurances. Any modifications to this Agreement must be made in writing and signed by both parties, except as permitted under Section 3.3. The terms of the Agreement take precedence over any additional, conflicting, or inconsistent terms and conditions that may be included in any purchase order provided by one party to the other. Any additional terms and conditions in such purchase orders shall be disregarded, regardless of the acceptance or execution of such purchase orders by the non-furnishing party.
Glossary
1.1 “Affiliate” refers to Dripcel or any legal entity in which Customer or Dripcel, directly or indirectly, possesses more than fifty percent (50%) of the entity’s shares or voting rights. Such legal entity shall remain classified as an Affiliate as long as this ownership interest is maintained.
1.2 “Agreement” denotes an Order Form and documents incorporated therein.
1.3 “Confidential Information” encompasses:
(a) Pertaining to Customer: (i) marketing and business requirements, (ii) implementation plans, and/or (iii) financial information.
(b) Pertaining to Dripcel: (i) the Service, Documentation, and (ii) information concerning research and development, product offerings, pricing, and availability.
(c) Confidential Information of either party also includes information designated as confidential in writing at the time of disclosure or reasonably understood to be confidential given the nature of the information and the circumstances of disclosure.
(d) Confidential Information excludes Customer Data, which is subject to Dripcel’s obligations under Section 3.3 of the GTC.
1.4 “Customer Data” refers to any content, messages, data, and/or information delivered or uploaded by Customer to the Dripcel Network or Service. Customer Data and its derivatives do not include Dripcel’s Confidential Information or any usage data generated by Dripcel in providing the Service.
1.5 “Data Controller” as defined in the GDPR.
1.6 “Data Processor” as defined in the GDPR.
1.7 “Data Processing Agreement” is the Data Processing Agreement (“DPA”) applicable to the Services, accessible at https://www.Dripcel.com/data-protection-agreement/.
1.8 “Data Protection Law” encompasses the pertinent laws and regulations governing the collection, use, storage, disclosure, or other processing of personal data, including but not limited to, the General Data Protection Regulation or the “GDPR,” the California Privacy Rights Act (the “CPRA”), POPIA (Protection of Personal Information Act, 2013, South Africa, )the California Consumer Privacy Act (the “CCPA”), as further delineated within the DPA.
1.9 “Documentation” refers to Dripcel’s current technical and functional documentation, along with any service descriptions and roles and responsibilities descriptions provided to Customer with the Service.
1.10 “Excluded Event(s)” denotes any of the following: (i) faults or issues with systems not operated or managed by Dripcel; (ii) breaches of the Agreement by the Customer or a third party under the Customer’s direct control or any third-party supplier to the Customer; (iii) acts by the Customer that interfere with or hinder the supply and support of the Service; (iv) Service suspension in accordance with the terms of the Agreement; or (v) other circumstances resulting from events for which Dripcel bears no liability under the terms of the Agreement.
1.11 “General Data Protection Regulation” or “GDPR” refers to the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council, as amended, supplemented, and/or varied from time to time.
1.12 “Indemnity” refers to any section within an Order Form, Supplement, or GTC specifically designated as an indemnity, either by its wording or its heading.
1.13 “Intellectual Property Rights” encompass copyrights, database rights, patents, patent applications, patent rights, trademarks, trademark applications, trademark registrations, trademark rights, trade secrets, rights in know-how, and all other intellectual property and proprietary information rights that currently exist or may arise under the laws of any country, including all pending applications and rights to apply for or register the same (present, future, and contingent), along with all renewals, extensions, revivals, and accrued rights of action.
1.14 “Order Form” signifies the ordering document for a Service referencing the GTC.
1.15 “Personal Data” denotes information about an individual defined as “personal data” or “personal information” within the DPA and, if necessary, further specified within the applicable Data Protection Law, such as but not limited to, the GDPR.
1.16 “Service” encompasses any distinct service or services provided by Dripcel pursuant to an Order Form, including any associated support.
1.17 “Dripcel Network” includes the digital networks (wireless or otherwise), server(s), hardware, software, and/or any other equipment owned, operated, or leased by Dripcel, at its sole discretion, in connection with the provision of the Service, including any extranet access provided by Dripcel.
1.18 “Supplement” signifies the Supplemental Terms and Conditions applicable to the Service and incorporated into an Order Form.
1.19 “Term” indicates the duration specified in the applicable Order Form, including any renewals.