Drupal 7 Basic Edition Subscription Agreement

This HeroDevs Drupal 7 Subscription Agreement (the “Agreement”) is entered into by and between HeroDevs, Inc. with a principal place of business at 8850 S 700 E, #2437, Sandy, UT 84070 (“HeroDevs”) and the individual or entity which signs, or electronically accepts this Agreement, including with respect to purchases made via, (i) an Order Form, (ii) a HeroDevs Partner, or (iii) HeroDevs Web-Portal (the “Customer”). This Agreement is entered into on the earlier of, (a) Customer clicking “Agree”, "Accept" or “Yes” to the terms of this Agreement to gain initial access to, or use of, the Software and Subscription Services, (b) the date set forth in an Order Form executed between HeroDevs and Customer referencing this Agreement, or (c) Customer is given access to the Software (“Effective Date”). Unless otherwise agreed to in writing by HeroDevs, all use of the Software and Subscription Services shall be governed by the terms of this Agreement.

1. SCOPE OF THE AGREEMENT

1.1 This Agreement establishes the terms and conditions which shall govern Customers use of the HeroDevs Drupal 7 Basic Edition Subscription Services (as defined herein). For the avoidance of doubt, the term "Subscription Services" (as used within this Agreement) shall only apply to the HeroDevs Drupal 7 Basic Edition Software, referred to herein as the Software.

1.2 Other than the HeroDevs Drupal 7 Basic Edition Software, Customer acknowledges and agrees that this Agreement shall not apply with respect to any other HeroDevs offering.

2. THE SUBSCRIPTION SERVICES

2.1 HeroDevs provides a separately maintained and modified version of the Community Software (defined below)(the “Software”). The Software is not provided as a Software-as-a Service (SaaS), and HeroDevs does not require, nor desire to receive, any direct, remote or other access to Customer’ system(s) and/or environment(s).

2.2 As part of the services offering, HeroDevs provides access to updates, compatibility and security fixes, and other support services with respect to the Software, as set forth in the attached Drupal 7 Basic Edition Appendix 1 (the “Services”). The provision of Software and Services shall collectively be referred to as the “Subscription Services”. HeroDevs Subscription Services may be referred to as “Never-Ending Support” or “NES”.

2.3 Customer acknowledges and agrees that the Services are provided solely with respect to the Software, and do not include any right by Customer to use the Services for the publicly available Drupal 7 community software (the “Community Software”).

2.4 Customer further acknowledges and agrees that HeroDevs has no obligation to provide the Subscription Services or any other support for the Community Software. With respect to the Services, and HeroDevs obligations set forth herein, such obligations shall only extend to the Software during an active Subscription Term, and not the Community Software.

2.5 The details of the Subscription Services to be provided under this Agreement, and the definition(s) of Units, are set forth in the attached Drupal 7 Basic Edition Appendix 1.

3. ORDERING

3.1 Unless otherwise agreed to in writing, the terms of the Order Form and this Agreement, of which it is a part, shall govern the use and provision of the Subscription Services. This shall include any purchase(s) made from a third party reseller of HeroDevs (a “Partner”).

3.2 The purchase of Subscription Services shall take place through, (i) the HeroDevs website portal (“Web-Portal”), (ii) a HeroDevs Partner, or (iii) entering into a written order form between Customer and HeroDevs that sets forth the applicable Subscription Services, term, price, currency, Unit quantity (e.g., number of Users) and any other applicable transaction details (“Order Form”). Such Order Form shall be executed by representatives of each party that have the authority to enter into agreements. In the event the Subscription Services are purchased via the Web-Portal, or a HeroDevs Partner, Customer shall be required to enter into and agree to this Agreement. HeroDevs obligations to Customer shall at all times be those set forth in this Agreement. Unless otherwise specifically stated herein, reference(s) to Order Form(s) within this Agreement shall include Customer purchases via the Web-Portal.

3.3 Unless otherwise agreed to in writing, all fees (“Fees”) stated in an Order Form shall be due and payable in United States Dollars, net thirty (30) days upon Customer’s receipt of invoice (“Payment Term”). Any Fees not paid during the Payment Term shall be subject to a half percent (.5%) interest per month, or the maximum amount permitted by applicable law, whichever is lower. With the exception of termination as set forth in Section 7.5 (Term & Termination), all Fees are non-refundable. With respect to Web-Portal purchases, all Fees shall be due and payable immediately.

3.4 In the event Customer fails to render payment during the Payment Term, and an additional thirty (30) days has elapsed, HeroDevs may (at its sole discretion), and in addition to any available rights at law and equity, (i) suspend the provision of Subscription Services, or (ii) terminate this Agreement in accordance with Section 7.5.

3.5 Customer shall be responsible for any taxes, duties, and customs fees associated with the purchase of the Subscription Services (“Tax(es)”), excluding taxes based solely on HeroDevs’ income. For the avoidance of doubt, all Fees are exclusive of applicable Taxes, and in the event HeroDevs is obligated to pay or otherwise collect Taxes on behalf of Customer, Customer will be invoiced for such amount(s) in addition to the Fees stated on the Order Form, unless Customer provides a valid tax exemption certificate. Customer shall provide a valid tax exemption certificate to HeroDevs in writing and in advance of the execution of an Order Form.

3.6 The Subscription Services shall be provided based upon the applicable Unit Definition detailed in Drupal 7 Basic Edition Appendix 1 (the “Units”). At all times during the Subscription Term, and as required to receive the Subscription Services, Customer shall purchase (and maintain) the same quantity of Units for Subscription Services as are deployed or used by Customer.

4. ADDITIONAL UNITS AND SERVICES

4.1 During the Subscription Term, Customer may, subject to this Agreement, activate and use Add-On Services. “Add-On Services” are additional Units, or additional HeroDevs Offerings, in excess of those that have been purchased. Add-On Services shall be co-termed to the underlying Subscription Term.

4.2 Upon HeroDevs request, Customer shall, (i) provide a report no later than thirty (30) days prior to the end of the annual Subscription Term of all Subscription Services (including Add-On Services) used or deployed during said Subscription Term (“Annual Report”), and (ii) be obligated to pay for such Add-On Services used during the previous twelve (12) month Subscription Term. For the avoidance of doubt, Customer shall not have the right to report less than the number of Units originally purchased. Additional Units captured in the Annual Report shall be pro-rated and priced at the same cost as the original Subscription Services. Net-new HeroDevs Offerings shall be pro-rated and priced at the then current list price. HeroDevs shall provide Customer with the necessary right(s) and mechanism(s) to enable Customer to generate the Annual Report. Upon receipt of the Annual Report, HeroDevs shall invoice Customer the applicable Fees, which will be paid in accordance with Section 3 of this Agreement.

4.3 In the event an Annual Report is not provided, (i) all Add-On Services used or deployed by Customer shall not include any pro-ration, set-off or deduction to account for term of use, or otherwise, and (ii) such Add-On Services shall be priced at the then current list-price.

5. LICENSE

5.1 HeroDevs provides Customer, upon the execution of this Agreement, or acceptance to this Agreement via reference in an Order Form, a free, non-exclusive, non-sublicensable license to use the Software, including the right to use any applicable Services rendered in support of such Software, during an active Subscription Term.

5.2 Customer may use the Subscription Services provided that Customer shall:

5.2.1 Download and host copies of the Subscription Services within Customer’s infrastructure / environment (i.e., servers);

5.2.2 Ensure Subscription Services shall only be used (i) by Users (including Free Users) employed, or contracted on behalf of, Customer, and (ii) for the applicable Software product(s) and quantity of Units as set forth on the Order Form, or as agreed to between Customer and Partner;

5.2.3 Only use the Subscription Services for its own internal use and not distribute, or otherwise make the Subscription Services, available to any third party;

5.2.4 Not remove notices of trademark, copyright, patent, and other intellectual property rights as contained in the Subscription Services and associated documentation;

5.2.5 Not rent, lease or sell the Subscription Services or any features or functions of the Subscription Services to any third parties;

5.2.6 Make commercially reasonable efforts to prevent any unauthorized disclosure or use of the Subscriptions Services, which may include compiling, bundling, obfuscating, or other standard industry practices; and

5.2.7 Not use the Subscription Services for the purposes of, (i) benchmarking HeroDevs against any other third party (or Customer) offering(s), or (ii) any violation of applicable laws, rules or regulations.

5.3 HeroDevs shall own all right, title, and interest in and to the Services. This shall include any (i) materials, ideas, and items that are conceived, made, discovered, written, or created by us in connection with providing the Subscription Services; (ii) all intellectual property, proprietary rights and underlying source code and object code in and to the foregoing; and (iii) all other intellectual property owned by HeroDevs, including all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how. Except as expressly set forth herein, or as required by the license for the Community Software, HeroDevs does not convey any rights to Customer or any third party.

6. WARRANTIES & LIMITATION OF LIABILITY

6.1 THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND HERODEVS EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTEGRATION, ACCURACY, OR NON-INFRINGEMENT AND ANY OTHER IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, HERODEVS DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, OR ERROR-FREE.

6.2 FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION, IN NO EVENT WILL HERODEVS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF HERODEVS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO ANY SUCH DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SUBSCRIPTION SERVICES; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SOFTWARE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SOFTWARE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE. FURTHERMORE, HERODEVS IS NOT BE LIABLE FOR ANY CONTENT YOU CREATE, PROVIDE OR DELIVER WHICH IS MADE POSSIBLE BY USE OF THE SOFTWARE (“CUSTOMER CONTENT”).

6.3 TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE FEES PAID WITHIN THE TWELVE (12) MONTHS PRIOR TO ANY SUCH CLAIM.

7. TERM & TERMINATION

7.1 The Term of this Agreement shall commence upon the Agreement Effective Date, and continue until terminated in accordance with the provisions set forth herein.

7.2 Unless otherwise agreed to in writing, including in an executed Order Form, the Subscription Services shall be provided on an annual basis (“Subscription Term”), and shall automatically renew for successive twelve (12) month periods, unless either party gives notice of its intention to not renew no later than thirty (30) days prior the expiration of the applicable Subscription Term. The renewal of the Subscription Term will include the same quantity as originally purchased, as well as any Add-On Services set forth in the Annual Report or as deployed by Customer, whichever is greater. The renewal of a Subscription Term, for the same Subscription Services, may be initiated upon Customer issuing a purchase order (or other similar document), provided that any such renewal, and use of Subscription Services, shall be governed by this Agreement.

7.3 The Subscription Term shall commence upon the earlier of, (i) the date set forth in the Order Form, or (ii) the date in which Customer accesses the Subscription Services (“Subscription Term Start Date”).

7.4 This Agreement shall apply to any and all use of the Subscription Services by Customer. In the event of any conflict between the terms of this Agreement, and any other terms and conditions provided by Customer, including but not limited to those set forth in a purchase order or other ‘pass-through’ contract(s), the terms of this Agreement (and applicable Order Form) shall control.

7.5 Either party may terminate this Agreement and an Order Form if: (i) the other party is in material breach of the terms of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice of such breach, or (ii) either party becomes the subject of a petition for bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event of termination due to HeroDevs inability to satisfy a warranty under Section 6.2, Customer shall receive a prorated refund of Fees with respect to the Subscription Services not yet delivered under the Subscription Term. Customer shall not be entitled to any refund of Fees for any other termination.

7.6 Upon termination of this Agreement, Customer shall no longer use the Services. Customer may continue to use any Software it obtained prior to termination, provided that such use is without any obligation to HeroDevs to provide further support.

8. CONFIDENTIALITY

8.1 “Confidential Information” means non-public, proprietary, business, technical, security, legal, or financial information that is either marked or identified as Confidential Information or would reasonably be understood to be confidential, including source code, processes, services, trade secrets, marketing and business plans, client lists, financial information, system architecture, security programs, and intellectual property. Notwithstanding the foregoing, Confidential Information does not include information that: (a) the receiving party possesses without a duty to keep confidential prior to acquiring it from the disclosing party; (b) is or becomes publicly available through no violation of this Agreement by the receiving party; (c) is given to the receiving party by a third-party not under a confidentiality obligation to the disclosing party; or (d) is developed by the receiving party independently of, and without reliance on, confidential or proprietary information provided by the disclosing party.

8.2 Each party may be given access to Confidential Information of the other party in connection with this Agreement. The receiving party may only use the Confidential Information as provided for in this Agreement or to exercise its rights hereunder and may only share this Confidential Information with its employees, agents, advisors and service providers who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use the same degree of care, but no less than a reasonable degree of care, as such party uses with respect to its own Confidential Information to protect the disclosing party’s Confidential Information and to prevent any unauthorized use or disclosure thereof. If the receiving party is compelled by law to disclose the other party’s Confidential Information, it will use commercially reasonable efforts to give the disclosing party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.Whenever any Confidential Information must be disclosed in any legal proceeding, the disclosing party shall use reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such Confidential Information.

8.3 The Confidential Information shall be protected by each party, as set forth herein, for a period of no less than three (3) years after it was first received; provided that, any Confidential Information which qualifies as a trade secret shall be treated as confidential as described in Section 8.2 above until such time that is no longer confidential.

8.4 Each party acknowledges that any breach, threatened or actual, of this Section 8 may cause irreparable injury to the other party for which there may not be an adequate remedy at law. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.

8.5 With respect to the protection of Customer information, the HeroDevs Privacy Policy located at https://www.herodevs.com/privacy-policy, and the terms of the Data Processing Addendum located at https://support.herodevs.com/hc/en-us/article_attachments/28042564713229 (“DPA”) are incorporated into this Agreement. The DPA shall apply to the extent any Customer Personal Data (as defined in the DPA) is provided to HeroDevs.

9. AUDIT & RECORDS

9.1 In accordance with this Agreement, HeroDevs shall have the right to verify electronically (or otherwise), and generate, or reasonably request Customer to generate and provide, reports related to Customer’s installation of, access to, and use of the Subscription Services to ensure compliance with the terms of this Agreement.

9.2 In addition to the rights set forth in Section 9.1, HeroDevs shall have the right, no more than once per year, to have an independent auditor (as approved by Customer) conduct an audit of Customer’s use of the Subscription Services. Upon conclusion of such audit, Customer shall provide written certification stating its compliance with the terms of this Agreement, including with respect to, (i) purchase of the applicable number of Unit(s), and (ii) each User having a valid Subscription. In the event the audit discloses that Customer’s use of the Subscription Services exceeds those purchased, Customer shall be obligated to render payment for all such instance(s) of use, which shall be prorated and retroactive to the original Subscription Term for which they apply; provided that, if such use does not apply to any active Subscription Term, Customer shall be obligated to pay for the period of time in which the Subscription Services were used. Customer shall reimburse HeroDevs for the cost of the audit if the audit reports that the Subscription Services used exceed by more than ten percent (10%) the number self-reported by Customer in any Annual Report.

9.3 Each party shall maintain records during the term of this Agreement and for a period of two (2) years thereafter, or as otherwise required by applicable law.

10. MISCELLANEOUS

10.1 Notices may be provided to Customer via email or courier mail. All notices to HeroDevs shall be in writing and delivered to the address set forth in the introduction to this Agreement, with a copy sent to legal@herodevs.com. Physical addresses, email addresses or other contact information of Customer shall be as set forth in the Order Form.

10.2 This Agreement will be governed by the laws of the State of Utah, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Salt Lake City County, Utah, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the Parties with respect to this Agreement and the transactions contemplated hereby.

10.3 In the event of any conflict between the terms of this Agreement or an Order Form, the Order Form shall control.

10.4 Neither party is liable for delay or default hereunder if caused by conditions beyond its reasonable control, including natural disasters, acts of God, hacker attacks, acts of terror or war, riots, actions or decrees of governmental bodies, changes in applicable laws, or communication or power failures.

10.5 The Software and Services are the same for all customers, and represent commercial “off-the-shelf” software. HeroDevs will not provide custom services under this Agreement, and in the event such custom services are needed, the parties will enter into a separate agreement for the provision of professional services.

10.6 This Agreement does not create or imply any agency, partnership, or franchise relationship. This Agreement is intended for the benefit of the parties and not any third party. Neither party has the authority to assume or create any obligation on behalf of the other party.

10.7 Neither the rights nor the obligations set forth under this Agreement are assignable or transferable by either party without the other party’s prior written consent, which shall not be unreasonably withheld or delayed, and any attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may assign this agreement without the consent of the other party to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets in aggregate. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

10.8 The Software and and Services are “commercial items” as those terms are defined at 48 C.F.R. §2.101 and consist of “commercial computer software” and “commercial software documentation” as such terms are used in 48 C.F.R. §12.212. Accordingly, if Customer is the U.S. Government or any contractor for the U.S. government, Customer shall receive only those rights with respect to the Software and the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government Customers and their contractors.

10.9 If Customer is a U.S. government entity subject to either the Federal Acquisition Requirements (“FAR”) or Defense Federal Acquisition Regulation Supplement (“DFARS”), collectively referred to as “Federal Requirements”, the Order Form shall set forth the provisions of applicable Federal Requirements which override any provisions of this Agreement. Except as set forth in the Order Form, the terms of this Agreement shall apply.

10.10 Sections 4.2, 5.1, 5.3, 6.2, 6.4, 8,9 and 10 shall survive the termination of this Agreement.

10.11 This Agreement, together with the respective Order Form(s), constitute the entire legal agreement with respect to the Subscription Services and shall supersede all prior or contemporaneous representations, agreements or understandings (written or verbal) relating to the subject matter hereof. Any terms and conditions appearing on a purchase order or similar document do not apply, do not override or form a part of this Agreement, and are void and of no effect.

10.12 If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

Drupal 7 Basic Edition Appendix 1

1. OVERVIEW

1.1 This Drupal 7 Basic Edition Appendix 1 (the “Appendix”) governs your use of the Drupal 7 Basic Edition Subscription Services, and is subject to the HeroDevs Drupal 7 Basic Edition Subscription Agreement available at https://docs.herodevs.com/tos/d7-basic/ (referred to as the “Agreement”). Unless otherwise stated herein, capitalized terms used in this Appendix have the meaning defined in the Agreement.

2. SUBSCRIPTION SERVICES

2.1 Subscription Services are term based and will expire if not renewed.

2.2 The HeroDevs Offerings may change from time to time, provided that, HeroDevs Offerings shall not be removed or modified during an active Subscription Term in any way which materially diminishes the value of the Subscription Services received by Customer during an active Subscription Term.

2.3 HeroDevs shall render the Subscription Services to the version of Software provided as part of the original install and source code. In the event Customer requires additional support for direct (or indirect) Software dependencies, (i) an additional Subscription may be required, and (ii) HeroDevs, in its sole discretion, may support such dependencies as necessary for production use of the Software. For the purposes of clarity, HeroDevs will have no obligation to render Subscription Services to any development dependencies that are not required for production use of the Software in materially the same manner in which the Community Software was deployed prior to it no longer being supported.

2.4 Customer acknowledges and agrees not to engage in any unauthorized or prohibited use of the Subscription Services, which includes: (i) purchasing or renewing fewer Subscription Services than the total number of Subscriptions used or deployed, (ii) providing Subscription Services (in whole or in part) to third parties, (iii) using Subscription Services in connection with any redistribution of Software or Services except as expressly permitted under this Subscription Services Offering or the Agreement, or (iv) using Subscription Services to support or maintain other software, including but not limited to Community Software, without purchasing the appropriate quantity of Subscriptions (referred to collectively as “Prohibited Subscription Services Use”).

3. OPEN SOURCE SUBSCRIPTION SERVICES

3.1 The Software is governed by the end user licenses set forth in the applicable Software license file. Nothing in this Agreement is intended to limit Customer’s rights to software under the terms of the Community Software license. While engaging in Prohibited Subscription Services Use(s) is a breach of the Agreement, such breach does not affect the rights granted under any Community Software license. Upon termination (including for breach) or expiration of this Agreement, you will no longer have access to future Services and other Subscription Services, but you will continue to have all rights under the Community Software license(s).

4. UNIT DEFINITIONS

4.1 The Fees, as set forth in an Order Form, shall be based upon the number of provided or used Units, for the applicable version of Subscription Services, pursuant to the table set forth below (the “Subscription(s)”).

4.2 For the avoidance of doubt, Customer shall be obligated to purchase and maintain the applicable number of Subscriptions for each Subscription Service during an active Subscription Term.

5. TRANSFER OF SUBSCRIPTION SERVICES

5.1 During the Subscription Term, Customer shall have the right to transfer or assign a Subscription from one (1) User to another; provided that, (i) Customer shall at all times be responsible for the number of Unit(s) applicable to such Subscription Services, and (ii) such transfer or assignment shall not circumvent the intent of the billing / consumption model for which the Subscription Services are provided, as reasonably determined by HeroDevs.

6. SUBSCRIPTION SERVICES SLAS

6.1 With respect to the Drupal 7 Basic Edition Subscription Services, HeroDevs does not provide any support as part of the Subscription Services.