This Software as a Service (SaaS) Agreement (“Agreement”) is effective as of the date of acceptance (the “Effective Date”) and is made by and between Drumbi, Inc., a Delaware corporation located at 9541 Irvine Center Drive, Irvine, California 92618 (“Drumbi”), and the enterprise customer identified in the activation sign-up form (“Customer”).
BY SIGNING UP FOR AN ACCOUNT OR BY USING THE SERVICE, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR CORPORATE END USER THAT IS SPECIFIED IN THE REGISTRATION INFORMATION ASSOCIATED WITH SUCH END USER’S ACCOUNT FOR THE SERVICE.
Drumbi offers to its enterprise customers access to and use of Drumbi’s intelligent communications and workflow optimization platform which enables a series of client applications and devices to facilitate communication via between Drumbi’s enterprise customers and their respective clients and end user customers, as more particularly described in the Product Data Sheet available on the Drumbi website, as such Product Data Sheet may be revised by Drumbi from time to time in its sole discretion (the “Drumbi Solution”). Customer desires to access and use the Drumbi Solution, and Drumbi desires to give Customer such access to and use of the Drumbi Solution, subject to the terms and conditions in this Agreement. The parties hereby agree as follows:
1. LICENSE AND RESTRICTIONS.1.1 Drumbi License. Subject to the terms and conditions of this Agreement and on condition that Customer is in compliance with this Agreement, Drumbi hereby grants to Customer, during the term of this Agreement, a limited, non-exclusive, non-transferable license, without the right to sublicense except as expressly set forth in this Agreement, to access and use the Drumbi Solution for the purposes of creating Customer’s desired content, rules and/or icon for Clients’ use of the Drumbi Solution, in each case for the number of Sessions and Concurrent Users authorized hereunder, in accordance with Drumbi’s current use guidelines. As used herein, “Clients” means Customer’s clients and end customers who (a) access and use the Drumbi Solution either (i) through Drumbi’s separately downloaded Drumbi application or library for smart phones (the “Application”) or (ii) via the Internet, through clicking on Drumbi’s ‘call’ button or Live IVR product on Customer’s Site or (iii) via SMS or phone number interaction, as provisioned through the Drumbi Solution; and (b) are authorized via the Drumbi Solution’s authentication process to communicate directly with Customer. As used herein, “Concurrent Users” means the number of Customer Agents (as such term is defined in Section 4.1) authorized hereunder to be logged in simultaneously at any time to the Drumbi Solution by means of user IDs and passwords issued under Section 4.1, provided that any Agent logged in on multiple devices using the same user ID and password shall be considered one Concurrent User. The initial number of authorized Concurrent Users on the Effective Date is set forth in Exhibit A, and the number of authorized Concurrent Users may be increased from time to time during the term of this Agreement upon written agreement by the parties. As used herein, “Session” means the unique data session invoked through the Client’s actions, engaging the Drumbi Solution to produce a set of templates, guiding the Client through the Customer’s IVR experience.
1.2 License Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any Client or third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Drumbi Solution; (ii) modify, translate, or create derivative works based on any element of the Drumbi Solution or any related documentation; (iii) rent, lease, sell, resell, assign, or otherwise transfer its rights to use the Drumbi Solution; (iv) distribute the Drumbi Solution; (v) use the Drumbi Solution for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Clients; (vi) remove any proprietary notices from Drumbi materials furnished or made available to Customer, including without limitation the Drumbi Solution; (vii) publish or disclose to third parties any evaluation of the Drumbi Solution without Drumbi's prior written consent; (viii) use the Drumbi Solution for any purpose other than its intended purpose.1.3 Drumbi Trademark License. Drumbi hereby grants to Customer a non-transferable, non-sublicenseable, non-exclusive, royalty-free, fully paid-up license to use and display the Drumbi trademarks, service marks, logos, trade names and other marks (the “Drumbi Marks”) solely to identify the Drumbi Solution, including the use of the “Powered by Drumbi” banner and Drumbi’s ‘click to call’ button on Customer’s website and/or the Application. Customer’s use of the Drumbi Marks shall be in all cases subject to Drumbi’s prior written approval and such trademark usage guidelines as Drumbi may provide to Customer in writing from time to time. Customer shall not modify or alter the Drumbi Marks or use them in a confusing way, including suggesting sponsorship or endorsement by Drumbi, or in a way that confuses Drumbi with another brand. Upon written notice from Drumbi, Customer shall immediately cease any use and display of the Drumbi Marks identified by Drumbi in such notice to be in violation of this Section 3.3. All use by Customer of the Drumbi Marks and the goodwill associated therewith shall inure to the benefit of Drumbi.
1.4 Customer Trademark License. Customer hereby grants to Drumbi a non-exclusive, royalty-free, fully paid-up license to use and display all trademarks, trade names and other marks provided or otherwise made available by Customer through Customer’s exercise of its rights under this Agreement in connection with accessing and using the Drumbi Solution.
2. PASSWORDS; SECURITY.2.1 Passwords. Drumbi will either issue to Customer or authorize a Customer administrator to create and issue to its employees and agents (collectively “Agents”) a user identification number and/or password for access to and use of the Drumbi Solution, either directly or through an automated system or program, to communicate with Clients. Customer and its Agents are responsible for maintaining the confidentiality of all user identification numbers and/or passwords and for ensuring that each user identification number and/or password is used only by the user to which it was issued. Customer is solely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the Drumbi Solution accessed with such user identification numbers and/or passwords. Customer will restrict Agents from sharing passwords. Customer agrees to immediately notify Drumbi of any unauthorized use of Customer’s account, any user identification number and/or password, or any other breach of security known to Customer. Drumbi shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
2.2 Customer Data Defined. For purposes of this Agreement, the term “Customer Data” means and is limited to personally identifiable information about individual Clients (e.g., name, phone number, address, email address, etc.) submitted by Customer or a Client during usage of the Drumbi Solution. The term “Customer Data” does not include, without limitation, (a) information input into the Drumbi Solution by Customers about such Customers’ products and/or materials, (b) information and data (other than personally identifiable information) that is required by law to be collected and input into the Drumbi Solution when not combined with any personally identifiable information about a Client, (c) information or data about Customer and Clients use of the Drumbi Solution that is used by Drumbi in a manner that does not disclose Customer Data or any personally identifiable information about a Client, including, without limitation, Customer and Clients geographic location and time zone, Customer and Client usage statistics (such as the length of time on or using the Drumbi Solution) or the features or functions used by Customer or Clients, (d) data obtained by Drumbi from third parties, and (e) aggregation of data and information stored or processed by the Drumbi Solution in each case where no Customer Data is included in the aggregation (“Aggregated Statistics”). None of the foregoing (a) – (e) shall be considered Customer’s Confidential Information.
2.3 Security. Drumbi will deploy reasonable security precautions intended to protect against unauthorized access to any Customer Data stored by Drumbi in connection with the operation of the Drumbi Solution. Drumbi will exercise reasonable efforts to deploy corrections within the Drumbi Solution for security breaches made known to Drumbi.
2.4 No Circumvention of Security. Neither Customer nor any Client shall circumvent or otherwise interfere with any user authentication or security of the Drumbi Solution. Customer will immediately notify Drumbi of any breach, or attempted breach, of security known to Customer.2.5 No Guaranty of Security. Customer acknowledges that, notwithstanding the security precautions deployed by Drumbi, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Drumbi Solution and Customer Data. Drumbi cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.3. SUPPORT.Drumbi will provide to Customer the following support services described in this Section for the Drumbi Solution (collectively, “Support”). Drumbi will provide to Customer regular updates that correct errors or fix bugs in or provide minor feature enhancements to the Drumbi Solution that Drumbi makes generally available to its customer without charging a separate fee (“Updates”). Updates shall be provided to Client at such time as the updates are made commercially available by Drumbi. Drumbi will provide Customer with the ability for Customer’s designated support person (the “Designated Employee”) to access an online trouble ticket system to report problems or issues with the Drumbi Solution. Only the Designated Employee may report such problems or issues. Drumbi will use reasonable efforts to respond to and address problems and issues raised by Customer’s Designated Employee consistent with efforts used by Drumbi for its other customers during Drumbi’s normal business hours. In addition, Drumbi will make available to the Designated Employee a telephone number where the Designated Employee may report problems and issues with the Drumbi Solution or ask questions regarding the Drumbi Solution, in each case, during Drumbi’s normal business hours. Drumbi does not provide the Support services described above to individual Clients and Clients will be directed by Customer to contact the Designated Employee to report problems and issues. Unless otherwise mutually agreed by the parties in writing, Drumbi will provide the Support services described above only for the most current update provided by Drumbi to Customer.4. UPTIME. Drumbi will use commercially reasonable efforts to have the Drumbi Solution available to Customer 95% of the time, measured monthly, excluding downtime for scheduled maintenance and force majeure events (as such term is defined in Section 15). In the event that the Drumbi Solution is not available to Customer, Customer will notify Drumbi and Drumbi will use commercially reasonable efforts to solve problems or issues with the Drumbi Solution to enable Customer to access the Drumbi Solution. The foregoing shall be Drumbi’s sole and exclusive obligation and Customer’s sole and exclusive remedy in the event that the Drumbi Solution is not available to Customer. Drumbi will not have any obligations to Customer in the event that the Customer’s inability to access the Drumbi Solution is the result of a failure or problem with equipment, software or services owned, operated or provided by Customer or by any third party.
5. CUSTOMER AND OTHER OBLIGATIONS.5.1 Hardware/Software.Customer and its Clients, as applicable, are responsible for (i) obtaining, deploying, supporting and maintaining all computer hardware, third party software, including but not limited to the Application, and communications equipment needed to access and use the Drumbi Solution (ii) contracting with third parties that provide services related to Customer or Clients being able to access and use the Drumbi Solution (e.g., ISP, telecommunications, etc.) and (iii) paying all third-party fees and access charges incurred while accessing and using the Drumbi Solution. Except as set forth in Section 3(License and Restrictions), Drumbi will not be required to supply any hardware, third party software or equipment to Customer or Clients by reason of this Agreement.5.2 Compliance with Laws; Customer Data; Customer Indemnity. Each party represents and warrants, during the term of this Agreement, that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations applicable to its business and its performance of its obligations under this Agreement with respect to any Customer Data uploaded or submitted to the Drumbi Solution. Customer acknowledges and accepts complete responsibility and liability for all Customer Data. Customer will indemnify, defend and hold harmless Drumbi, its directors, officers, employees, agents, successors and assigns from any claims, actions, suits, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and costs) arising out of or related to (i) Customer’s breach of this Agreement, including this Section 7.2, (ii) the provision of Customer Data or Other Information to Drumbi or (iii) the use, storage, processing or display of Customer Data or Other Information by the Drumbi Solution. Drumbi shall promptly notify Customer in writing of any such claim, suit or action, and Customer shall have control of such defense, provided, however, that decisions regarding selection of counsel and settlement shall be subject to Drumbi’s prior approval, which approval shall not be unreasonably withheld. Drumbi will give all information and assistance reasonably requested by Customer, at Customer’s expense, in connection with Customer’s defense of any such claim, suit or action.
5.3 Conduct. Customer shall be solely responsible for its actions and the actions of its Clients while using the Drumbi Solution. Customer acknowledges and agrees (i) that Customer (or the Client, as applicable) is responsible for selecting appropriate remediation for, and resolving, any issues found on Customer’s or Client’s network, hardware, third party software, or third party services relied on by Customer or Client to access and use the Drumbi Solution (collectively, “Customer Items”); and (ii) that Drumbi is not liable for, or responsible to, remediate any issues found regarding Customer Items. Customer agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Drumbi Solution, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Drumbi Solution which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the Drumbi Solution or another's computer or mobile device; (d) not to use the Drumbi Solution for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Drumbi Solution or interfere with other ability to access or use the Drumbi Solution; (f) not to distribute, promote or transmit through the Drumbi Solution any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another customer’s use and enjoyment of the Drumbi Solution or another person or entity's use and enjoyment of similar services; (i) not to use the Drumbi Solution in any manner that impairs the Drumbi Solution, including without limitation the servers and networks on which the Drumbi Solution are provided; and (j) to comply with all regulations, policies and procedures of networks connected to the Drumbi Solution and Drumbi’s service providers. Customer acknowledges and agrees that Drumbi neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Drumbi may remove any violating content posted or stored using the Drumbi Solution or transmitted through the Drumbi Solution, without notice to Customer. Notwithstanding the foregoing, Drumbi does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or Other Information (as defined in Section 9.2below) or any other information or data input into or stored in the Drumbi Solution for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the Drumbi Solution. Drumbi does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data, Other Information or any such other data or information. Drumbi reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in this Agreement at any time. Drumbi may deliver notice of such updated requirements to Customer via e-mail or through the portal. Customer’s continued access to and use of the Drumbi Solution following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.
6. FEES AND TAXES.
6.1 License Fees. Customer agrees to pay the License Fees set forth in Exhibit A (“Fees”) in accordance with the payment terms in Exhibit A. Unless otherwise set forth in Exhibit A, any subscription or ongoing fees will start
on the actual Activation Date.All Fees are quoted and payable in United States currency. Except as otherwise expressly provided in this Agreement, Fees are non‑refundable once paid. Drumbi may change the Fees and/or Fee structure for the Drumbi Solution upon written notice to Customer, effective thirty (30) days following the date of such notice, provided that Drumbi shall not increase the Fees more than once in any twelve (12) month period.
6.2 Taxes. The Fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Drumbi’s net income).6.3 Late Payments.Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of one and a half percent (1.5%) of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.7. OWNERSHIP.
7.1 Drumbi Solution. As between Drumbi and Customer, all right, title and interest in the Drumbi Solution, and any other Drumbi materials or deliverables furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Drumbi Solution, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Drumbi or Drumbi’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Drumbi all ideas, feedback and suggestions made by Customer to Drumbi regarding the Drumbi Solution (collectively, “Feedback”) and all intellectual property rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Drumbi may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or intellectual property rights therein cannot be assigned by Customer to Drumbi, Customer hereby grants to Drumbi an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sub-licensees) to fully use, practice and exploit those non-assignable rights, title and interest. Except for the express licenses granted in Section 3(License Grant), there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Drumbi.7.2 Customer Data. As between Drumbi and Customer, all right, title and interest in (i) the Customer Data, (ii) other information input into the Drumbi Solution by Customer or Clients (collectively, “Other Information”) and (iii) all intellectual property rights in each of the foregoing, belong to and are retained solely by Customer. Customer hereby grants to Drumbi a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics.
7.3 Aggregated Statistics. As between Drumbi and Customer, subject to the license set forth in Section 9.2, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Drumbi. Customer acknowledges that Drumbi will be (i) compiling
Aggregated Statisticsbased on Customer Data, Other Information, and information input by Clients into the Drumbi Solution and (ii) selling or otherwise distributing such Aggregated Statistics to third parties. For the avoidance of doubt, Aggregated Statistics will not include any Customer Data.8. CONFIDENTIALITY.
8.1 Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the Drumbi Solution. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
8.2 Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
8.3 Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.9. WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRUMBI AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. DRUMBI DOES NOT WARRANT THAT THE DRUMBI SOLUTION OR ANY SERVICES OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE DRUMBI SOLUTION OR ANY SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT CUSTOMER DATA OR OTHER INFORMATION WILL BE SECURE.10. INDEMNIFICATION. Drumbi shall defend, or at its option settle, any third party claims or suits against Customer based on a claim that the Drumbi Solution infringes any patent issued as of the Effective Date or any copyright or trade secret; and Drumbi shall pay any final judgment entered against Customer in any such claim or suit or Drumbi agreed to settlement amount; provided (a) Drumbi is promptly notified by Customer in writing of such claim or suit, (b) Drumbi or its designee has sole control of such defense and/or settlement (including, without limitation, selection of counsel), and (c) Customer gives all information and assistance requested by Drumbi or such designee. To the extent that use of the Drumbi Solution is enjoined or if Drumbi believes there is a likelihood of an injunction, Drumbi may at its option either (i) procure for Customer the right to use the Drumbi Solution, (ii) replace the Drumbi Solution with another suitable solution, or (iii) terminate this Agreement and refund to Customer the Fee(s) paid by Customer during the three (3) month period prior to such termination. Drumbi shall have no liability under this Section or otherwise to the extent a claim or suit is based upon the modification of the Drumbi Solution by any person or entity other than Drumbi or the use of the Drumbi Solution in combination with software or hardware not provided by Drumbi. The terms in this Section shall be Customer’s sole and exclusive remedy in connection with third party claims of infringement.11. LIMITATION OF LIABILITY.
11.1 Limitation on Direct Damages. IN NO EVENT SHALL DRUMBI’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY DRUMBI TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
11.2 Waiver of Consequential Damages. IN NO EVENT SHALL DRUMBI OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DRUMBI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Essential Purpose. Customer acknowledges that the terms in this Section 14(Limitation of Liability) are an essential bases of the bargain described in this Agreement and that, were Drumbi to assume anyfurther liability, the Fees would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 14(LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.12. GENERAL. Drumbi may subcontract to third parties some or all of Drumbi’s obligations under this Agreement. All notices to a party shall be in writing and sent to the addresses specified in above or such other address as a party notifies the other party, and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may not be assigned or transferred by Customer, including without limitation, by merger, operation of law or otherwise, without Drumbi’s prior written consent. Any assignment in derogation of the foregoing is null and void. Drumbi may freely assign or transfer this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. The failure of Drumbi to require performance by Customer of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Drumbi of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. Any action or proceeding arising from or relating to this Agreement shall be brought exclusively in the State or Federal courts located in Orange County, California. Any provision of this Agreement or portion of any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions or other portions of any provisions of this Agreement. Neither party shall be in breach of this Agreement if its failure to perform any obligation under this Agreement is caused by events or conditions beyond that party’s reasonable control, including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements (“force majeure events”). Pre-printed terms and conditions on or attached to any Customer purchase order or other document shall be of no force or effect.
MARKETING. Drumbi may use Customer’s name as part of a general list of customers and may refer to Customer as a user and customer of the Drumbi Solution in its general advertising and marketing materials.