This Hosted Services Agreement (“Agreement”) is made and entered into between DrivePOV LLC, a Georgia limited liability company, with offices at 3360 Martin Farm Rd, Suite 100, Suwanee, GA 30024 (“Provider”), and the customer (“Customer”). Each of Provider and Customer is a “Party” and collectively, the “Parties.”
Recitals
A. Provider is in the business of providing its Customers with access to and use of certain Provider’s Application Software (as herein defined) made accessible through Provider’s Secured Server.
B. Subject to the terms and conditions of this Agreement, Customer desires to purchase a subscription license from Provider to access Provider’s Secured Server and to use the software applications made available thereon, and Provider desires to grant such a license to Customer.
Terms and Conditions
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto do hereby covenant and agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the meanings:
1.1 “Application Services” means the hosted services provided by Provider to Customer which include access to and use of the Provider’s Application Software.
1.2 “Application Software” means the proprietary software, functions and online modules owned and developed by Provider and made available to Customer and its End Users through the Application Services, and include without limitation, all Documentation, Updates and New Releases that may hereafter be made available to Customer by Provider as part of the Support Services.
1.3 “Customer Content” means all text, images, videos, and other content uploaded by Customer End Users on behalf of Customer in connection with use of the System.
1.4 “Confidential Information” means any information which relates to the disclosing Party’s or its affiliates’ business or business operations that is disclosed by a Party or Customer End Users by any means and in any format (including verbal disclosures, written, or electronic copy and use of the System), and that is (a) the proprietary, secret, or confidential information of the disclosing Party or its affiliates or their respective employees or agents, and/or (b) is the personally identifiable and private information of an End User, and/or (c) which a reasonable person would deem proprietary, secret, confidential, per private, including, without limitation, the Application Software and any Customer Content uploaded to the Secured Server that is not publicly available.
1.5 “Documentation” means all related materials, documentation and information made available to Customer, including any published specifications for the Application Software and Application Services.
1.6 “End User” means an individual who is a member of the Customer community (i.e. resident, tenant, renter, property owner, etc.) or an employee or agent of Customer who is authorized by Customer to access and use the Application Software and Application Services pursuant to the terms of this Agreement.
1.7 “Fees” means the License Fees, Support Fees, and if applicable, the Professional Services Fees set forth in Exhibit A.
1.8 “License Fees” means the amount set forth in Exhibit A that is charged to Customer for access to and use of the System subject to the terms of Section 5.1.
1.9 “Professional Services” means consulting and IT services provided by Provider in connection with the System, including by way of example but not limitation, any implementation, configuration, set-up, installation, training or such other services as specified in Exhibit A and any subsequent purchaser orders or Statements of Work executed by the Parties.
1.10 “Professional Services Fees” means the mutually agreed amounts (per hour or fixed) that Provider may charge to Customer for certain Professional Services as described in Exhibit A.
1.11 “Secured Server” means that space on Provider’s or Provider’s hosting Provider’s server on which the System is made available to Customer and its End Users, which space is (a) blocked and protected (using industry standard technology) from any third party access other than by Customer End Users and those designated Provider employees assigned to assist Customer with use of the System, (b) not used by any other Provider Customer, and (c) protected against storage or comingling of any third party data.
1.12 “Subscription Term” means the period during which the subscription license is in effect as set forth in this agreement and Exhibit A, including all renewals.
1.13 “Support Fees” means the amount set forth in Exhibit A that is charged to Customer for the Support Services, subject to the terms of Section 5.1. Support Fees are included in the total License Fee charged to Customer.
1.14 “Support Services” means the services provided by Provider to Customer, which includes maintenance of the Application Software through Updates and New Releases, Temporary Workarounds, Error Fixes, and general support and maintenance of the System.
1.15 “System” means collectively, the Application System and Application Services.
1.16 “Transition Services” means reasonable assistance to be provided by Provider to Customer to enable the smooth and orderly transition of all Customer Content and any other data uploaded by any End Users from Provider’s Secured Server to a server designated by Customer, which may include a Customer-controlled server or a third-party server.
2. Grant of License
2.1 Grant.Subject to the terms and conditions of this Agreement, Provider hereby grants to Customer for itself, and for their respective End Users, and Customer hereby accepts from Provider, a non-exclusive and nontransferable license during the Term to (a) access and use and allow its End Users to access and use the System made available through Provider’s Secured Server, and (b) use the Documentation in an electronic format.
2.2 Additional Restrictions.The license granted in Section 2.1 above is conditioned upon Customer’s strict compliance with the terms and conditions of this Agreement including, without limitation, the following terms and conditions: (a) Customer may use the System for Customer’s own internal purposes only and not for outsourcing, sublicensing, and/or resale provided, that use by Customer’s End Users in furtherance of Customer’s business with such End Users is permitted, (b) Customer shall not (i) permit any unaffiliated third party to use the System, or (ii) use the System for commercial time sharing, (c) Customer shall not create modifications to or derivative works based on the System or cause or permit others to nor shall Customer embed or incorporate in any manner the System into other applications without Provider’s prior written consent (d) Customer shall not modify, reverse engineer, translate, disassemble, or decompile the System, or cause or permit others to, (e) Customer shall not remove any title, trademark, copyright and/or restricted rights notices or labels on the System or Documentation.
2.3 Reserved Rights. Provider hereby reserves all rights in and to the System not expressly granted in this Agreement.
3. Customer Obligations
3.1 Customer Data. Customer shall be solely responsible for ensuring that it has all necessary rights to upload the Customer Content to the System.
3.2 Equipment. Customer shall be responsible for obtaining and maintaining all video cameras and mounts, computer hardware, internet browsers and connections and other equipment needed for access to and use of the Application Services and all charges related thereto.
4. Provider Obligations
4.1 System Delivery.Provider will be responsible for the set-up, configuration and hosting of the computer hardware, software, communications systems, network and other infrastructure necessary to host the System and permit Customer and its End Users to access and use the System. On a date mutually agreed by the Parties, Provider shall provide online access keys and/or secured user IDs with Documentation containing all necessary user instructions, which will enable Customer to access the System, establish accounts for its End Users, and access and utilize the Application Software and Application Services during the Term. Provider will deliver to Customer all necessary Documentation relating to Customer’s use of the System.
4.2 Professional Services. Customer may purchase certain Professional Services from Provider as set forth in Exhibit A and from time to time under individual Statements of Work. Professional Services and related fees shall be described in Exhibit A and any subsequent statement of work. If training is included in the Professional Services, Provider agrees to provide up to the number of hours of training set forth in Exhibit A or the Statement of Work. Unless otherwise agreed, training shall be provided via commercially available remote access format (Webex, Lync, etc.) in a single session at a time to be mutually agreed by the Parties.
4.3 Support Services.Provider agrees to provide Support Services to Customer and Customer employees as set forth in Exhibit A attached hereto. Support Services shall commence on the first day of the Subscription Term and shall continue for the duration of the Subscription Term set forth in Exhibit A, subject to payment of the Support Fees if not included in the License Fees. Renewals of Support Services shall occur upon renewal of the Subscription Term. End Users shall receive Support Services through Customer and Customer’s employees. Provider is not obligated to provide Support Services directly to End Users.
4.4 Security, Redundancy and Disaster Recovery.Provider warrants that all Customer Content loaded onto Provider’s Secured Server will be backed up regularly so as to safeguard against data loss. Provider shall use its best efforts to mitigate disruptions to the System and Customer’s access to and use of the System (including avoidance to extent possible, a downtime emergency), by ensuring that its redundant resources and other back-up solutions are updated and ready at all times including resources needed to implement its disaster recovery plan, and by immediately implementing same in the case of any Force Majeure Event (as herein defined). Customer Content shall be maintained on the system for up to 12 months. Any data older than 12 months may be deleted by Provider from the system on a monthly basis.
4.5 Machine Learning.Usage Data and Customer Content may be used to develop, train, or enhance artificial intelligence or machine learning models that are part of Provider’s products and services, including third-party components of the Product, and Customer authorizes Provider to process its Usage Data and Customer Content for such purposes. However, (a) Usage Data and Customer Content must be aggregated before it can be used for these purposes, and (b) Provider will use commercially reasonable efforts consistent with industry standard technology to de-identify Usage Data and Customer Content before such use. Nothing in this section will reduce or limit Provider’s obligations regarding Personal Data that may be contained in Usage Data or Customer Content under Applicable Data Protection Laws. Due to the nature of artificial intelligence and machine learning, information generated by these features may be incorrect or inaccurate. Product features that include artificial intelligence or machine learning models are not human and are not a substitute for human oversight.
5. Fees and Taxes
5.1 Fees. Customer shall pay to Provider the License Fees as consideration for the subscription license granted herein to the System, and, if separately charged, the Support Fees as consideration for the Support Services. The License Fees shall be collected based on the published rates of Provider. Updates to the published rates of Provider shall be submitted to Customer at least 60 days in advance of any change.
5.2 Payment Terms. Provider shall issue invoice to Customer within the first five (5) business days of each calendar month. Customer shall remit payment in full within twenty (20) days from the invoice date. Any payments not received within this period will incur a late fee of five percent (5%) of the outstanding balance.
5.3 Taxes.In addition to all charges specified in this Agreement, Customer shall pay for all federal, state, local or other taxes not based on Provider’s net income, property or net worth, including, but not limited to, sales, use, privilege and property taxes, or amounts levied in lieu thereof, based on charges payable under this Agreement or based on the Application Services, its use or any services performed hereunder, whether such taxes are now or hereafter imposed under the authority of any federal, state, local or other taxing jurisdiction.
6. Intellectual Property Rights
All right, title, and interest in and to the System including, without limitation, all intellectual property rights in and to Application Services (excluding Customer’s Content) all updates and upgrades to the System, and any derivative works and enhancements of the System shall belong solely to Provider and/or its applicable suppliers, without Customer reserving or otherwise having any rights therein whatsoever.
Representations and Warranties
6.1 Mutual Representations and Warranties. Each Party represents and warrants that it has all requisite corporate power and authority to enter into this Agreement, and that each Party is able to perform its obligations without violating applicable laws or third-party contracts.
6.2 Customer’s Content. Customer represents and warrants that it stewards the Customer Content and/or has the right to use and upload the Customer Content onto the System. Any inaccuracy in Customer Content is the responsibility of Customer, and to the best of its knowledge, the Customer Content does not infringe or misappropriate the Intellectual Property.
6.3 Provider Intellectual Property. Provider represents and warrants that it owns or has the right to license the Application Software and to provide the Application Services to Customer as described in this Agreement and to provide the Support Services and any Professional Services described herein without, to the best of its knowledge, infringing or misappropriating the Intellectual Property Rights of any third party.
6.4 Security Warranty.Provider warrants that at all times during a Subscription Term: (a) all applications and data uploaded or downloaded by Customer’s Authorized Users to and/or from Provider’s Secured Server and Customer’s servers in connection with Customer’s use of the Online Services will be protected by state of the art technology to defend against third party hackers, malicious online activity, and unauthorized access by internal and external users; (b) Provider will use a Secured Server; (c) Provider’s Secured Server and the Provider Databases will be located in a physically secured, redundant data operations facility with security, fire, and disaster protection features customary in the industry, and industry standard security practices, which include redundant and back-up power supplies, and 24/7/365 monitoring and maintenance; and (d) Provider will employ industry standard practices to reduce the risk of a distributed denial of service attack, including: (i) ingress and egress filtering on core routers to guard against address spoofing; (ii) the use of private IP address space to shield core infrastructure components from the Internet; (iii) vigilant system patching procedures; and (iv) the use of load balancers to buffer connection requests. Customer acknowledges that Provider’s hosting services are provided by a third party.
6.5 Warranty Disclaimer.
Except as set forth above, Provider makes no other representations or warranties of any kind, express or implied, oral or in writing, and Provider disclaims all implied warranties, including warranties of merchantability or fitness for a particular purpose. Provider does not warrant that use of the product will be uninterrupted or error-free, or that all non-material errors will be corrected.
7. Consequential Damages and Limitation of Liability
Expressly excluding damages arising from the breach by either Party of its confidentiality obligations or indemnification obligations, in no event shall either Party be liable to the other for (1) any indirect, special or consequential damages arising out of or in any way connected with this Agreement, even if advised of the possibility of such damages, or (2) any amounts in excess of three (3) times the fees due to Provider from Customer under this Agreement during the one (1) year period prior to the date that such liability first arises.
8. Confidentiality
Each Party agrees that it shall not disclose the Confidential Information of the other Party or of an End User to any third party or to any of its employees or agents except on a need-to-know basis, unless the disclosing Party or End User has consented to such disclosure in advance and in writing. Provider agrees that the Customer Content that is not publicly available and all other information of Customer and/or End Users that meets the definition of Confidential Information as set forth herein shall be protected by Provider using the same degree of care it uses to protect its own such Confidential Information and in no event less than a reasonable standard of care with respect to the electronic and physical security of all Confidential Information uploaded to its Secured Server. Provider shall not use any Confidential Information of Customer or its End Users except for the purpose of providing the Application Services, Support Services, and Professional Services (if any), and to otherwise fulfill its obligations to Customer and the End Users under this Agreement. Customer shall likewise protect Provider’s Confidential Information using the same degree of care it uses to protect its own such Confidential Information and in no event less than a reasonable standard of care and shall abide by the terms of the license granted herein. These obligations shall survive the cancellation or other termination of this Agreement.
9. Indemnification
9.1 By Customer.Customer agrees to indemnify, defend and hold harmless Provider, its affiliates and their respective directors, officers, employees and agents from and against all claims, allegations, suits and proceedings brought by a third party (collectively, “Claims”) and all liabilities, damages, losses and expenses including attorneys’ fees and cost of suit (collectively, “Damages”) incurred by Provider or ordered to be paid to any third party claimant to the extent arising from or relating to (a) Customer’s breach of the license terms and conditions in Sections 2.1 and 2.2 of this Agreement or (b) the alleged or actual infringement of such third party’s rights through publication of the Customer Content on the System.
9.2 By Provider.Provider agrees to indemnify, defend and hold harmless Customer, its affiliates and their respective directors, officers, employees and agents from and against any and all Claims and all Damages incurred by Customer or ordered to be paid to any third party claimant to the extent arising from (a) the alleged or actual infringement of a third party’s rights through Customer’s use of the System in accordance with the terms of this Agreement, or (b) all third party Claims and Damages arising from a breach by Provider of its representations and warranties.
9.3 The foregoing obligations are conditioned on the party seeking indemnity (a) notifying the indemnifying party promptly in writing of such action, (b) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and (c) cooperating with and, at the indemnifying party’s reasonable request and expense, assisting in, such defense.
10. Term and Termination
10.1 Agreement Commencement; Subscription Term. This Agreement shall commence on the Effective Date and shall continue on a month-to-month basis until terminated by either Party. This agreement will automatically renew on the 1st day of each month unless otherwise notified by Customer or Provider in writing.
10.2 Termination. Either Party may terminate this Agreement upon (30) days written notice.
10.3 Obligations upon Termination.Within thirty (30) days of the date this Agreement is terminated for any reason, Provider shall ensure that all copies of Customer Content and any End User data have been wiped from its Secured Server and all backup drives. Termination of this Agreement shall not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of Customer’s obligation to pay all undisputed Fees that accrued prior to such termination.
11. Miscellaneous
11.1 Severability. The provisions of this Agreement shall, where possible, be interpreted in a manner to sustain their legality and enforceability; any such portion not enforceable shall not affect the remaining terms of this Agreement.
11.2 Independent Contractor.Each Party shall carry out its duties and obligations under this Agreement as an independent contractor and not as a joint venturer with the other Party or an agent of the other Party, and each Party’s performance shall not be subject to supervision or control by the other Party but shall be subject solely to the terms of this Agreement.
11.3 Force Majeure.Any delays or failures by either Party hereto in the performance of its obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such Party’s control (a “Force Majeure Event”) including, without limitation, acts of God, war, whether declared or not, terrorism, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled, prevented or mitigated by such Party.
11.4 Assignment. Neither Party may assign its rights under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
11.5 Entire Agreement. The Parties agree that this Agreement constitutes the entire agreement of the Parties hereto with respect to its subject matter. There are no representations, agreements, arrangements, or understandings, oral or written, between or among the Parties relating to the subject matter of this Agreement which are not fully expressed herein. This Agreement is intended to replace, supplant, supersede and/or merge all prior oral and/or written agreements, negotiations and/or understandings and this Agreement represents the entire Agreement between the Parties.
11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia and each of the parties hereto consenting the exclusive personal jurisdiction of the courts of Georgia as if they were personally present in such State.
11.7 Notices. All notices required or contemplated by this Agreement shall be in writing. Any notice to be given or served hereunder, by either Party shall be deemed given and received hereunder when delivered personally or three (3) days after being mailed certified mail, postage prepaid, to Customer or Provider at the addresses set forth hereinabove.
11.8 Effect of Agreement. This Agreement shall constitute the entire Agreement between the contracting parties and no variance from or modifications to this Agreement shall be valid and enforceable unless published by Provider and noticed to Customer with an opportunity to modify or reject said variance or modifications in writing within 30 days of notice. This Agreement shall be binding upon and shall inure to the benefit of the Customer and the Provider and their respective successors and assigns. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which together constitutes one and the same instrument.
Exhibit A
Free Trial Period
Customer may use the system for a free trial of thirty (30) days with an unlimited number of Communities, Properties, and Users. Customer may cancel the agreement any time within the Trial Period at no cost.
License Fee
Monthly license fees for duration of engagement:
- $10 per Community created in the system, plus
- $0.10 per Property created in the system
- Costs are per inspection per month
- Fees will be calculated based on the numbers in the system on the last business day of a month and billed in the following month.
Customers may request to have Communities and Properties removed at any time. Fees for those removed items will apply through the end of the last month they were active in the system. Once removed from the system, the historical data for those items will be purged within 30 days.
Setup & Training
- Initial Account Setup — DrivePOV will set up the initial Customer admin and user accounts (up to the first 10 users) for no additional charge.
- Training — DrivePOV will provide one 30-minute virtual orientation and training session for the Admin user(s), and one 60-minute virtual orientation and training session for the regular users.
- Community and Property Setup — If the Customer sets up their own Communities and Properties, there is no setup fee. If DrivePOV sets up the Communities and Properties for the Customer using data provided in Excel or CSV format, the cost will be a one-time fee of $25 per Community.
Support Service Fees
- No charge — help desk services (8:30 am – 5 pm EST) for Customer employees.
- No charge — online help for Customer and their End Users.
This agreement is accepted electronically within DrivePOV — your name, the agreement version, and the time of acceptance are recorded. The signed PDF is the authoritative copy of this agreement.