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DrizzleX Terms and Conditions

Last Revised on Jan. 11th, 2024

THESE DRIZZLEX TERMS AND CONDITIONS (the “Terms”) dated as of the Order Form Effective Date of the first Order Form (the “Effective Date”), is entered into by and between DrizzleX, Inc., a Delaware corporation (“DrizzleX”) and Customer (as defined in the Order Form) (also referred to as “you” or “your”, and together with DrizzleX, the “Parties”, and each a “Party”).


1.           PARTICIPATION.


1.1.   Hardware Purchase. Customer will purchase from DrizzleX the Hardware and data transmission gateways (“Gateway(s)”) for use at the Customer Site(s), all as set forth on one or more order forms between the parties that reference these Terms (each, an “Order Form”). Unless otherwise specified on the Order Form(s), Customer will Install the Hardware and Gateway(s) at the Customer Location(s) set forth in the Order Form(s) and connect the Hardware and Gateway(s) to the Cloud-based Services, in each case in accordance with the Documentation and as instructed by DrizzleX.


1.2.   License. Subject to the terms and conditions of these Terms, DrizzleX hereby grants to Customer a non-exclusive, non-transferable limited license, without the right to sublicense, to: (a) use and install the Firmware; (b) access and use the Platform, Cloud-based Services, and Documentation; and (c) download, install, access and use the App (if made available to Customer). Customer will: (i) use, run or operate the Firmware only on the Hardware; (ii) use, run or operate the Hardware only with the Platform, Cloud-based Services, and/or App; and (iii) use the DrizzleX Products only in accordance with the Documentation. Customer acknowledges and agrees that its use of the Platform, Cloud-based Services, or App may also be subject to applicable terms of service.


1.3.   Customer Obligations. Customer shall coordinate with DrizzleX to schedule Hardware shipment, Installation (where applicable), and training (when applicable), as well as any required property survey by DrizzleX, as soon as reasonably feasible for both parties. If access to Customer Site(s) and/or Tenant Unit(s) is needed, Customer shall arrange for such access during such scheduled times and, before such scheduled times, Customer shall notify all affected tenants at the Customer Site(s) of Installation and the use of the DrizzleX Products in the Tenant’s unit, and provide all required disclosures to and obtain all required consents from Tenants. It is Customer’s sole responsibility to ensure such notifications to tenants comply with applicable law. Unless the Order Form(s) specifies that Installation is being done by DrizzleX (such Installation to be governed by the terms of the Order Form(s) and Section 9 below), Customer shall make commercially reasonable efforts to Install the Hardware and Gateway(s) at the earliest opportunity and in accordance with the Documentation and as instructed by DrizzleX. Customer shall inform DrizzleX of the number of occupants in each Tenant Unit of the Customer Site(s) (“Occupancy Data”) at the earliest commercially feasible opportunity following an initial Installation; and shall make commercially reasonable efforts to update the Occupancy Data in such manner, and at such intervals, as shall be prescribed by DrizzleX or otherwise agreed upon by the parties.  Customer recognizes that the accuracy of the Occupancy Data provided to DrizzleX will affect the accuracy of some statistics returned by the Platform.


1.4.   Ownership. All right, title and interest in the intellectual property embodied in the DrizzleX Products and the Cloud-based Services belongs solely and exclusively to DrizzleX or its suppliers or licensors. DrizzleX shall own all data collected, generated, processed, transmitted or stored by the DrizzleX Products and the Cloud-based Services. If Customer provides DrizzleX with any suggestions, comments or feedback about any DrizzleX Products or Cloud-based Services (“Feedback”), Customer agrees that such Feedback is the exclusive property of DrizzleX, and Customer hereby assigns all of its rights, title and interest in and to such Feedback to DrizzleX.


1.5.   Support. DrizzleX will offer Customer email, telephone, instant messaging and video conference support during DrizzleX’s normal business hours, to answer questions and provide training regarding Installation and use of DrizzleX Products and the Cloud-based Services. Upon request by Customer, DrizzleX may provide such support outside of its normal business hours at mutually feasible times arranged by the parties at an additional cost.


2.           PAYMENTS; FEES.


2.1.   Purchase Fees. Upon execution of these Terms and/or an Order Form, DrizzleX will send Customer an invoice for 30% of the fees for the Hardware and Gateway purchases, as well as any other non-recurring Fees specified in the Order Form(s) (“Non Recurring Fees”), unless otherwise specified in the Order Form(s). Upon shipment of the Hardware and Gateways, DrizzleX will send Customer an invoice for the balance of the Non-Recurring Fees plus any applicable shipping and handling charges. If during Installation, different quantities or types of Hardware or Gateways are Installed than are specified in the Order Form(s) (“Installation Adjustments”), DrizzleX will reflect such changes, either as credits or Fees as applicable, as soon as practicable on the next invoice DrizzleX sends to Customer.


2.2.   Subscription Fees. DrizzleX will invoice Customer once per calendar quarter (or as otherwise specified in the Order Form(s)) for monthly subscription (SaaS) fees for the Cloud-based Services, as set forth in the Order Form(s) as modified by Installation Adjustments, if any (“Subscription Fees”). Subscription fees shall be assessed: (a) beginning with the calendar month of the scheduled Installation date if the scheduled Installation date falls on or before the 14th day of that month, or (b) beginning with the calendar month immediately succeeding the scheduled Installation date if the scheduled Installation date falls on or after the 15th day of the month.  After the Initial Term, DrizzleX may increase Subscription Fees on such Order Form by no more than 5% annually.


2.3.    Payments. Payments are due on receipt of invoices. Invoices not paid in full within 15 days of receipt will incur a late fee of 1% per month, or the maximum amount permitted by law if less than 1%. If Customer disputes an invoice in good faith, Customer shall notify DrizzleX in writing of such dispute within 15 days of the invoice date.


2.4.   Taxes. Fees pursuant to these Terms do not include any transaction taxes, which may include sales tax, use tax, VAT, withholding tax, foreign export duties or other similar taxes, levies, and charges (“Taxes”). Customer is responsible for paying any and all Taxes associated with Fees due pursuant to these Terms (including any Order Form(s), as applicable).  If DrizzleX is required to collect Taxes from Customer, DrizzleX may issue an invoice to Customer for such Taxes, which shall be payable to DrizzleX when due.

 

3.   Confidentiality.

Customer agrees that it will hold in strict confidence and not disclose to any third party any Confidential Information of DrizzleX, except as authorized by DrizzleX in advance, in writing, and will use the Confidential Information of DrizzleX only to use, install, download, access, run or operate the DrizzleX Products in accordance with Section 1.2, or to evaluate the DrizzleX Products. “Confidential Information” means all information that DrizzleX provides to Customer that would reasonably be understood to be confidential due to the nature of the information or circumstances of its disclosure. In the event Customer is required under applicable law, pursuant to court order or any other governmental entity, regulation, requirement, order or directive (such laws, regulations, requirements, orders and directives collectively referred to as an “Order”) to disclose any Confidential Information, Customer shall, to the extent permissible under applicable law, first (at least ten (10) days before making any such disclosure, or such shorter period as may be required by the Order) notify DrizzleX in writing as to the nature of the disclosure that Customer reasonably believes it is required to make, which notice shall include any Order and a statement of all information that Customer believes it is so required to disclose. Customer will cooperate reasonably with DrizzleX in any proceeding to obtain a protective order or other remedy.  If such protective order or other remedy is not obtained, Customer will disclose only that portion of such Confidential Information required to be disclosed, in the opinion of Customer’s legal counsel. Customer will request that confidential treatment be accorded such Confidential Information, where available. Compulsory disclosures made pursuant to this section will not relieve Customer of its obligations of confidentiality and non-use with respect to non-compulsory disclosures.


4.           TERM; TERMINATION.


4.1.   The term of these Terms begins on the Effective Date and continues until all Order Forms have been terminated (the “Term”).


4.2.   Either party may terminate one or all Order Forms upon written notice to the other party if the other party materially breaches any of the provisions of these Terms and, if such breach is capable of being cured, fails to cure such breach within 30 days after receipt by the breaching party of written notice specifying the breach. Where there are no Order Forms in effect, either party may terminate these Terms by providing written notice to the other party. Upon termination of an Order Form, all amounts owed by Customer under that Order Form are due immediately, and any unused amounts prepaid by Customer will be refunded. If Customer desires to terminate one or more Order Forms due to disposition (or anticipated disposition) of the Customer Site(s) specified in such Order Form(s), Customer shall provide DrizzleX with prior written notice that such is the case and DrizzleX will allow Customer to terminate the applicable Order Form(s) associated with such Customer Site being disposed. Upon request by DrizzleX, Customer agrees to take reasonable efforts to facilitate discussions between the purchaser of the applicable Customer Site and DrizzleX regarding continued use of the DrizzleX Products.


4.3.   Survival. Sections 1.4, 2, 3, 4 and 5 - 8 survive termination or expiration of these Terms.


5.           WARRANTY; DISCLAIMERS.


5.1.   Mutual Warranties. Each party represents and warrants that (a) it has the corporate right, power and authority to enter into these Terms, (b) the execution of these Terms by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound, and (c) these Terms constitutes the legal, valid and binding obligation of such party, in accordance with their terms.


5.2.   DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE SET FORTH IN SECTION 5.4 OF THESE TERMS, CUSTOMER ACKNOWLEDGES THAT (A) THE DRIZZLEX PRODUCTS ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND, (B) THE DRIZZLEX PRODUCTS MAY NOT BE ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS, AND (C) DRIZZLEX DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE DRIZZLEX PRODUCTS IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. FURTHER, WITHOUT LIMITING THE FOREGOING, DRIZZLEX EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE DRIZZLEX PRODUCTS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DRIZZLEX UNDER THIS AGREEMENT OR OTHERWISE SHALL CREATE ANY WARRANTY.


5.3.   LIMITATION OF LIABILITY.  EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY AND INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY, ITS LICENSORS OR THEIR RESPECTIVE AFFILIATES OR AGENTS BE LIABLE TO THE OTHER HEREUNDER FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF PROFITS, DAMAGE TO PROPERTY DUE TO WATER LEAKS OR OTHERWISE, NON-PAYMENT OF ANY OF ANY REBATES, CREDITS, PAYMENTS OR OTHER BENEFITS OF ANY KIND FROM ANY GOVERNMENT AGENCY, LOSS OF DATA, COVER OR BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE DRIZZLEX PRODUCTS, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR A PARTY’S INDEMNIFACTION OBLIGATIONS, BREACH OF CONFIDENTIALITY, INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 2, A PARTY’S LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO DRIZZLEX UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.


5.4.   Limited Manufacturer’s Warranty. DrizzleX warrants to Customer that the Hardware will be free from manufacturing defects at the time of shipment to Customer. If Customer notifies DrizzleX of such a defect in any Hardware within 12 months of Installation of such Hardware, DrizzleX will, at no cost to Customer, send Customer a replacement for such Hardware, provided such defect is not caused by misuse or modifications to the Hardware. DrizzleX’s liability under this Section 5.4 is limited to providing Customer with replacement Hardware and this Section 5.4 states Customer’s sole and exclusive remedy and DrizzleX’s sole and exclusive liability in the event of this limited warranty.


5.5.   Insurance. DrizzleX represents and warrants that it maintains general liability insurance in the amounts of $1,000,000 per occurrence and $2,000,000 general aggregate, on a per-policy basis.


5.6.   GOVERNMENT INCENTIVES. DRIZZLEX MAKES NO REPRESENTATION OR WARRANTY ABOUT, AND SHALL HAVE NO LIABILITY FOR, WHETHER OR TO WHAT EXTENT CUSTOMER’S INSTALLATION AND/OR USE OF ANY DRIZZLEX PRODUCTS ENTITLES CUSTOMER TO REBATES, CREDITS, INCENTIVES, OR PAYMENTS OF ANY AMOUNT, OR AT ALL, PURSUANT TO ANY GOVERNMENT PROGRAM (“GOVERNMENT INCENTIVES”), NOTWITHSTANDING ANY ASSISTANCE THAT DRIZZLEX MAY PROVIDE TO CUSTOMER TO APPLY FOR SUCH GOVERNMENT INCENTIVES.


5.7.   THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR THIS AGREEMENT AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.


6.           INDEMNIFICATION.


6.1.   Indemnification. Customer will indemnify, defend and hold DrizzleX and its employees, directors, officers, contractors, representatives and assigns (collectively, the “DrizzleX Indemnified Parties”) harmless from and against any losses, liabilities and damages suffered or incurred by any DrizzleX Indemnified Party that result from any actions, suits, demands or claims brought by any third party (collectively, “Claims”) and any costs and expenses (including reasonable attorneys’ fees) incurred by any DrizzleX Indemnified Party in connection with any such Claim, to the extent such Claim arises out of or results from (i) Customer’s or any tenant’s breach of these Terms or use of the DrizzleX Products contrary to the terms of these Terms or (ii) Customer’s failure to provide all notices and obtain all consents required from tenants with respect to the use or installation of the DrizzleX Products or access to any Customer Site or Tenant Unit. Customer shall not settle or consent to any judgment in any such indemnified Claim without the prior written consent of DrizzleX.


7.           DEFINITIONS.


App” means the DrizzleX mobile application.


Cloud-based Services” means the systems and software used by DrizzleX to sort, store, process, analyze, transfer and display water usage data generated by the Hardware and Firmware, including (but not limited to) the Platform and the App.


Customer Site” means Customer’s property or properties listed on one or more Order Form(s).
“Documentation” means any and all electronic or printed instructions, manuals or other documentation that DrizzleX may from time to time provide to Customer for installing, connecting, accessing and/or using the DrizzleX Products.


DrizzleX Products” means the Hardware, Firmware, App, Gateway(s), Platform and Documentation provided by DrizzleX to Customer.


Fees” means Non-Recurring Fees and Subscription Fees.

Firmware” means the object code version of all DrizzleX software embedded on or in the Hardware.

Hardware” means the DrizzleX Micrometer(s), as defined on Exhibit A.

Install” or “Installation” with respect to Hardware and/or Gateway(s) means to physically connect the Hardware to the fixtures at the Customer Site(s) and register the Hardware and Gateway(s) on the Platform, App, and/or Cloud-based Services.

Platform” means the DrizzleX proprietary software-as-a-service dashboard made available to Customer.

Tenant Unit(s)” means apartments, offices, condos, or other areas at Customer Site(s) that are rented to tenants.


8.           MISCELLANEOUS.


8.1.   Entire Agreement; Amendments. These Terms, together with one or more Order Form(s) executed by the parties contemporaneously with or after the Effective Date, constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, commitments, and representations with respect to the subject matter hereof. If there is a conflict between these Terms and an Order Form, the Order Form controls. These Terms may not be amended except by a written instrument executed by both parties that identifies itself as an amendment to these Terms.


8.2.   Counterparts. These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.


8.3.   Waiver. Any waiver of the provisions of these Terms or of a party’s rights or remedies under these Terms must be in writing to be effective.  No express or implied waiver by a party of any breach or default of the other party will be construed as a waiver of a future or subsequent breach or default by the other Party. A party’s failure or delay to enforce the provisions of these Terms or its rights or remedies at any time will not be deemed to be a waiver of such party’s rights or remedies under these Terms and will not affect the validity of these Terms or any part of it, or prejudice such party’s right to take subsequent action.


8.4.   Assignment. DrizzleX may, at its sole discretion, assign its rights and delegate its obligations under these Terms. Customer may not assign or transfer these Terms or its rights or obligations under these Terms, except in the event of a change in ownership or management of a Customer Site, in which case Customer may assign the Order Form(s) associated with such Customer Site to the new owner or manager of such Customer Site, as the case may be, provided that Customer notifies DrizzleX in writing at least 15 days before such assignment. Any attempted assignment by Customer in violation of the preceding sentence is void and of no effect. These Terms is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in these Terms confers any rights upon any person other than the parties, and each such party’s respective successors and permitted assigns.


8.5.    Force Majeure. A party’s nonperformance, default or breach under these Terms, except for the making of payments, will be excused to the extent that performance is rendered impossible by strike, fire, flood, pandemic, earthquake, war, governmental acts or restrictions, failure of suppliers, or any other similar reason where failure to perform is beyond the reasonable control and not caused by the negligence of the nonperforming party; provided that the nonperforming party (a) notifies the other party as soon as practicable and describes at a reasonable level of detail the applicable circumstances and the period of time the occurrence is expected to continue and (b) continues to perform as and to the extent possible; and provided further that the other party may terminate these Terms if such nonperformance continues for a period of sixty (60) days or more.


8.6.   Choice of Law; Forum. These Terms and any dispute arising from the construction, performance or breach hereof shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without reference to its conflict of law principles. The parties hereto agree that the exclusive jurisdiction and venue for any action brought between the parties under these Terms shall be the state or federal courts located in Delaware, and each of the parties hereby agrees and submits itself to the exclusive jurisdiction and venue of such courts.


8.7.   Independent Contractors. The parties’ relationship to one another is that of independent contractors.


.   Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.


9.           INSTALLATION BY DRIZZLEX.


9.1.   Applicability. This Section 9 applies only if the Order Form(s) specifies that Installation is being done by DrizzleX.


9.2.   Installation Services. DrizzleX agrees to physically connect the Hardware to the fixtures at the applicable Customer Site(s) and register the Hardware and Gateway(s) on the Platform, App and/or Cloud-based Services (“Installation Services”). Customer agrees to make the applicable Customer Site(s) available without interruption during DrizzleX’s normal working hours to permit completion of Installation Services, including by providing notice of such work to and obtaining all necessary consents from all tenants at the applicable Customer Site(s) at least 48 hours (or longer if required by applicable law or regulation) ahead of the scheduled date for Installation Services.


9.3.   Installation Fees. Customer agrees to pay the fees for Installation Services set forth in the Order Form.


9.4.   Warranties; Disclaimers. DrizzleX warrants that the Installation Services will substantially conform to the specifications set forth herein and will be performed in a reasonable workmanlike manner. Customer acknowledges that Installation Services may be performed by third-party personnel. DrizzleX makes no warranties to Customer with respect to such third-party personnel or the condition of the Customer Site(s) following Installation Services, either express or implied, and DrizzleX expressly disclaims any implied warranty that Installation Services or the DrizzleX Products, following Installation Services, are or will be suitable for Customer’s intended purpose. To the fullest extent permitted by applicable law, liability under any condition or warranty which cannot be excluded is limited to providing Installation Services again. Customer agrees that it is solely responsible for the condition and maintenance of the DrizzleX Products following Installation Services.


9.5.   Indemnification. Customer will indemnify, defend and hold DrizzleX Indemnified Parties harmless from and against any losses, liabilities and damages suffered or incurred by any DrizzleX Indemnified Party that result from any Claims and any costs and expenses (including reasonable attorneys’ fees) incurred by any DrizzleX Indemnified Party in connection with any such Claim, to the extent such Claim is brought by any tenants of the Customer Site(s) or arises out of or results from (i) any DrizzleX Indemnified Party’s access or attempt to access the Customer Site(s) or (ii) the condition of the Customer Site(s) prior to or following the performance of Installation Services.


9.6.   Limitation of Liability. None of the DrizzleX Indemnified Parties shall be liable to Customer for consequential, special, exemplary, indirect or incidental losses or damages arising from the performance of Installation Services, including, without limitation, such damages for non-performance as a result of DrizzleX being refused entry to a Customer Site, and Customer hereby waives such damages and releases each such party from any such liability, except in the case of the gross negligence, fraud or willful misconduct of a DrizzleX Indemnified Party.

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