Dittofi Master Subscription Agreement

Last updated: 10/09/2022

The Dittofi Master Subscription Agreement (this “Agreement”) is entered into as of the date that the Customer logs into the Dittofi Design Studio (“Effective Date”) by and between “Dittofi”and you on behalf of “Customer” (each, a “Party”, and together, the “Parties”). This Agreement governs the purchase of Subscriptions for the Software, and by clicking on the appropriate button, enrolling yourself onto a subscription or by, accessing and using the Software, you agree to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of a Customer, you represent that you have the authority to bind the Customer. Do not sign up for, login, access or use any of the Software if you do not agree to other terms of this Agreement or if you are not authorised to accept the terms of this Agreement on behalf of the Customer. If the Customer already has an executed master subscription agreement in effect with Dittofi, then that agreement shall prevail over this agreement, and this agreement shall have no force or effect.

Definitions

“Application” means the computer application generated by the Customer using the Dittofi Software.

“Customer” means the party agreeing to the terms of the Agreement as the Customer.

“Documentation” means the online user guides and video tutorials set forth at https://docs.dittofi.com/.

“Dittofi Runtime Environment” means the containers run and managed by Amazon’s Elastic Container Service which is used to run the Dittofi Design Studio, the customer instance of apps developed inside of the Dittofi Design Studio and production apps running inside the Dittofi Cloud.

“New Software Version” means a major release whose primary purpose is to add new functionality, enhance the performance of the Software or enhance the user experience of the Software.

“Fees” means the amount to be paid for the Subscription as detailed in the applicable Order.

“Order” means the ordering documents, including online transaction records, issued by Dittofi for purchases under this Agreement, including addenda and amendments to such documents, that are executed and accepted by the Customer from time to time. The terms of this agreement shall be deemed incorporated by reference into each Order. The term “Order” specifically excludes any terms on Customer’s purchase order that are additional to, or inconsistent, with the terms of this Agreement or the applicable Order issued by Dittofi.

“Software” means the Dittofi software described in the Documentation, the Dittofi Design Studio which can be used for front-end web, back-end, API and database development, the Dittofi Automatic Code Generators which generates HTML, CSS, React and Golang code and the Dittofi Cloud which is the Dittofi app hosting solution developed by Dittofi.

“Subscription” means the joint provision of Software licences and Support and Service Level Agreements as detailed in the applicable Order.

“Subscription Term” means the initial subscription term and any renewal Subscription Term.

TERMS AND CONDITIONS

1. ORDER MECHANISM

1.1 Each Subscription shall be obtained solely by execution or acceptance of an Order. Pursuant to execution of an Order and subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees, Dittofi will provide the Subscription to the Customer’s specified in the Order during the Subscription Term. 

1.2 The Customer may order multiple Subscriptions by executing additional Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise in the applicable Order. In the event of a direct conflict between any Order and the terms in this Agreement, the terms of the Order will prevail only if the Order is agreed to by each party in writing. For the avoidance of doubt, in the event that a Customer accepts an Order by submitting a purchase order, then regardless of whether Dittofi acknowledges accepts or performs such purchase order, Dittofi expressly rejects any terms on such purchase order that are additional to, or inconsistent, with the terms of this Agreement or the applicable Order. 

2. SAAS SERVICES AND SUPPORT

2.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services and to provide Customer with reasonable technical support services in accordance with the Support & Service Level Agreement for the Dittofi Software attached hereto as Exhibit A.

2.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.  Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

3.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.3 Unless agreed differently in the Service Level Terms, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 Customer shall own all rights, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

4.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business No rights or licenses are granted except as expressly set forth herein.

5. PAYMENT OF FEES

5.1 Customer will pay Company the then applicable fees described in the Order for the Services and Implementation Services in accordance with the terms therein (the “Fees”). All Fees are (unless otherwise indicated) payable 30 days after the date of the relevant invoice. If Customer’s use of the Services exceeds the Service Capacity set forth on the Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.

6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. Unless termination is triggered by non-payment or material breach of the contract by the Customer, the Customer will have 60 days after the contract termination date to execute the Source Code License attached as Annex D. Upon execution of Annex D, the Customer will be able to download a copy of the Customer project source code as it is generated by the Dittofi platform in the form and under conditions as stipulated in Annex D. After 60 days has passed, the Customer can request that Dittofi recover their apps Source Code for a fee of $1000. Dittofi is allowed to reject the Customer request to pay $1000 to recover the Customer project Source Code where is either technically impossible to recover the apps Source Code or it is not commercially viable for Dittofi to recover the Customer project Source Code. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTY AND DISCLAIMER

7.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. LIMITATION OF LIABILITY

8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 1 MONTH PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. MISCELLANEOUS

9.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; 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 shall be governed by the laws of the United Kingdom without regard to its conflict of laws provisions.

The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.