Terms & Conditions
Last Revision : August 2021
These Terms and Conditions are a binding contract between you (“Customer”) and Tribyl, Inc. (“Tribyl”). This “Agreement” includes and incorporates these Terms and Conditions and any order forms executed by the parties in writing and referencing these Terms and Conditions (each, an “Order Form”). By accepting this Agreement (e.g., by clicking a box indicating acceptance, by executing an Order Form, or by using the “Software,” “Content” or “Services” (as defined in each Order Form)), Customer agrees to the terms and conditions of this Agreement. Capitalized terms used herein that are not separately defined will have the meanings ascribed to them in the Order Form.
- SERVICES AND SUPPORT
- Subject to the terms and conditions of this Agreement, Tribyl will use commercially reasonable efforts to provide the Services to Customer. The Software is subject to modification from time to time at Tribyl’s sole discretion, for any purpose deemed appropriate by Tribyl. Tribyl will use reasonable efforts to give Customer prior written notice of any such modification. Customer will provide reasonable and timely cooperation as requested by Tribyl and Tribyl will not be responsible for any failure to perform its obligations hereunder to the extent caused by Customer’s failure to provide such cooperation.
- Tribyl reserves the right to suspend Customer’s access to the Software: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Tribyl.
- Subject to the terms hereof, Tribyl will provide reasonable availability and support to Customer for the Services in accordance with (i) the support package selected by Customer on the applicable Order Form (if any), or (ii) if no such support package is selected, Tribyl’s then-current standard Support and Availability Policy set forth at https://www.tribyl.com/terms-of-service.html.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not, and will not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software or any software, documentation or machine learning data related to the Services (“Service Materials”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Service Materials; (iii) use the Services or Service Materials for timesharing or service bureau purposes or for any purpose other than its own internal use for its own benefit; (iv) use the Services or Service Materials in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing or obscene way; or (v) use the Services or Service Materials other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
- Customer will cooperate with Tribyl in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Tribyl may reasonably request. Customer will also cooperate with Tribyl in establishing a password or other procedures for verifying that only designated employees of Customer have access to the Software. Customer shall ensure that any user’s identity and password or any other Tribyl Confidential Information are not shared with any other individual. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
- Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Tribyl.
- Services are subject to usage limits, including, for example, the number of Seats specified (if any) in the Order Form. If Customer exceeds these limits, Tribyl shall invoice the Customer as per Section 6.1 (Payment of Fees) below.
- Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Tribyl regarding future functionality or features.
- Customer hereby agrees to indemnify and hold harmless Tribyl 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 Tribyl has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Tribyl may do so and may remove any such content or prohibit any use of the Services it believes may be (or are alleged to be) in violation of the foregoing.
- From time to time, Tribyl may supply and invite Customer to try additional Tribyl software or services (the “Beta Services”) at no charge for the sole purpose of testing the Beta Services and reporting to Tribyl on the performance of the Beta Services (“Evaluation”). Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, limited release, developer preview, non-production, evaluation or by a description of similar import. Should Customer participate in a Beta Services trial, Customer may access and use the specific Beta Service that is the subject of such trial solely for Customer’s Evaluation purposes and only for the period of such trial. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not covered by Tribyl’s Support and Availability Policy, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Tribyl may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Tribyl provides the Beta Services “as is”, without any warranty of any kind. Tribyl and its licensors disclaim all warranties, both express and implied, relating to the Beta Services, including, but not limited to, any warranties of noninfringement, merchantability and fitness for a particular purpose. Tribyl will have no liability for any harm or damage arising out of or in connection with a Beta Service. Notwithstanding anything to the contrary, Sections 2.1, 2.5, 3.1, 3.2 and 3.3 of this Agreement shall also apply to the Beta Services and Customer’s use or trial of the Beta Services, as if the Beta Services were Services.
- Customer acknowledges and agrees that the Software operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Tribyl is not responsible for the operation of any Third Party Services nor the availability or operation of the Software to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Tribyl does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
- The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement and are bound by written obligations of confidentiality as protective of the Disclosing Party as those set forth herein, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction 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. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Tribyl may aggregate or anonymize data and use such aggregated or anonymized data to evaluate and improve the Services and otherwise for its business purposes.
- Customer acknowledges that Tribyl does not wish to receive any Proprietary Information from Customer that is not necessary for Tribyl to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise.
- Both Parties will have the right to disclose the existence, but not any terms of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors. Notwithstanding the foregoing, Tribyl may disclose the existence of this Agreement in connection with its marketing efforts.
- INTELLECTUAL PROPERTY RIGHTS
- Except as expressly set forth herein, Tribyl alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Service Materials (including any and all improvements, modifications or derivatives thereof) or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or Service Materials, which are hereby assigned to Tribyl. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning developed by Tribyl whether or not as a result of Customer’s interaction with the Services. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal analysis purposes only. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Service Materials, or any intellectual property rights. Notwithstanding anything to the contrary, Customer shall own the Customer Content (as set forth, if any, in the applicable Order Form), but not any of the Content. Customer’s rights to the Content are limited only to those rights granted to Customer above.
- Customer hereby grants to Tribyl and its contractors a worldwide, non-exclusive, royalty-free license to use, copy, store, archive, access, process, create derivative works of, reproduce, perform, display, modify, distribute and transmit (“Use”) Customer Data as necessary to provide Services to Customer. “Customer Data” means all data, information and other materials (a) submitted or made available by Customer to the Services or (b) transmitted by Customer to Tribyl and/or collected by or on behalf of Tribyl regarding Customer’s use of the Services. Furthermore, and in connection with the delivery of Service Materials, Customer hereby grants Tribyl a worldwide, non-exclusive right and license to Use de-identified and/or anonymized Customer Data sets (“De-Identified Data”), including any de-identified derivative data generated by the Software’s machine learning algorithms, in order to analyze, improve or enhance the Software or its algorithms. Tribyl will not (nor will it authorize any third party to) publish or distribute De-Identified Data in a manner that is identifiable as Customer Data, including by disclosing any Customer Data to any third party in any way that identifies (or can be used to identify) Customer, or associate Customer with Customer’s end users, employees or contractors, any details regarding its or their use of the Services; or provide the Customer Data to a third party for such third party to use for its own benefit.
- If Tribyl receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data or Customer’s use of the Services, may infringe or violate rights of a third party (a “Claim”), Tribyl may (but is not required to) suspend activity hereunder with respect to that Customer Data and Customer will indemnify Tribyl from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
- PROFESSIONAL SERVICES
Tribyl may from time to time perform Professional Services as may be agreed upon by the parties in the Order Form(s) that will include the scope of such Professional Services, the anticipated schedule, the fee structure, and the deliverables (if any) to be provided as part of the Professional Services. Unless otherwise agreed to by the parties in writing, Tribyl will have no obligation to provide Professional Services beyond the scope of matters expressly described in an Order Form.
- PAYMENT OF FEES
- Unless otherwise provided in the Order form, the Services are purchased as subscriptions. Customer will pay Tribyl the applicable fees as set forth on the Order Form (the “Fees”). If Customer use of the Services exceeds the usage limit set forth on the Order Form (if any), Customer will be invoiced at the end of each calendar month for the excess usage, at the rate set forth on the Order Form (if any), and Customer agrees to pay the additional fees without any right of set-off or deduction. Additional Seats and/or Professional Services added during a subscription term shall terminate on the same date as the underlying subscriptions as indicated on the Order Form. To the extent applicable, Customer will pay Tribyl for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Method of Payment specified in the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
- Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Tribyl's net income) unless Customer has provided Tribyl with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Tribyl on account thereof.
- Subject to earlier termination as provided below, this Agreement is for the Term as specified in the Order Form.
- In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business.
- Upon request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Tribyl will make Customer Data available to Customer through the Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to thirty (30) days, after such request is received by Tribyl. After such thirty (30) day period, Tribyl will delete all Customer Data and provide to the Customer written confirmation of such deletion.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
- CLIENT SOFTWARE SECURITY
Tribyl will not knowingly include, in any Tribyl software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Tribyl fails to comply with the obligation set forth in the previous sentence, Customer will promptly notify Tribyl in writing of any such noncompliance. Tribyl will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement upon thirty (30) days prior written notice to Tribyl as its sole and exclusive remedy for such noncompliance.
- WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND TRIBYL PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. TRIBYL (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY
IN NO EVENT WILL TRIBYL (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF TRIBYL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF TRIBYL, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO TRIBYL HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Tribyl are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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 Tribyl’s prior written consent. Tribyl may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that 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 Tribyl 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; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Tribyl will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, 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, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Tribyl. Tribyl is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.
CUSTOMER HOSTING PROVISIONS
The following will apply when Customer Hosting is elected on the Order Form:
- The Customer server(s) (and related or peripheral equipment and software) on which the Software for the Services is to be installed (the “Equipment”) will be dedicated exclusively to the Software and the Services. Customer will not otherwise use or transfer any such Equipment until all Software has been permanently removed. Customer will maintain this Equipment in good working order (including but not limited to backup, recovery, and reboot services as necessary). Customer will have full responsibility for security of all Equipment (physical, electronic and otherwise) such that no person or entity other than Customer will have any direct or indirect access to any Software.
- Customer’s rights to the Software and the Services are for internal use on authorized machines only and are limited, personal, non-sublicenseable, non-transferable and non-exclusive. Customer acknowledges and agrees that the Software (including, without limitation, the source code contained therein to which Customer may be given access hereunder) represents valuable trade secrets and will be treated as Tribyl’s Proprietary Information.
- Notwithstanding anything else, Tribyl will use commercially reasonable efforts to provide support and maintenance for the Software and to the extent set forth in Tribyl’s Software Support and Maintenance Terms (https://www.tribyl.com/terms-of-service.html), only for the then current release and immediately previous sequential release of the Software.
- Customer acknowledges and agrees that Tribyl will at all times have access to Equipment (including but not limited to onsite access and electronic access) to engage in any activity or action relating to Services (including but not limited to maintenance and installation of Software) subject to Customer’s standard reasonable security procedures. In addition, and without limiting any Tribyl remedies, if Customer makes use of any Software that is not authorized hereunder (including without limitation, any use in excess of capacity limitations set forth on an Order Form), it will so report to Tribyl and will pay additional license and maintenance and support fees equal to Tribyl’s then current standard fees for the license and maintenance and support of such additional uses (and quarterly, Tribyl will be entitled to audit or have audited all systems, Equipment and records relevant to assure compliance with the foregoing; any audit showing material noncompliance will be at Customer’s expense).
- Tribyl will have no obligation to insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or its employees, contractors, and agents.
- Upon any termination or expiration of this Agreement or applicable Order Form, Customer will promptly cease use of all applicable Software, and will delete all copies thereof (and upon request, certify such destruction in writing to Tribyl). Customer will also permit Tribyl to access the Equipment to remove or confirm removal of all Tribyl property, including but not limited to Software.
- Customer will not allow any lien to attach to any Software, will not remove any notice Tribyl may apply to the Equipment indicating that the Software is not owned by Customer and will publicly file any documents requested by Tribyl to such effect.
Support & Maintenance Services
Last Revision : July 2021
This Support and Availability Policy (the “Policy”) sets forth the policies and procedures with respect to services (the “Service”) provided by Tribyl to a customer (“Customer”) pursuant to a separate Order Form between Tribyl and Customer. Capitalized terms not defined in this Policy shall have the meaning set forth in the Terms and Conditions available at www.tribyl.com.
Our Policy covers Tribyl-owned Services exclusively, and does not cover support of third party add-ons.
Service Support (defined below) Includes:
- Help with issues during installation;
- Help with issues during upgrades, unless exceptions are noted in Release Documentation;
- Help troubleshooting problems;
- Help identifying workarounds.
Service Support Does Not Include:
- Product training;
- Customers who do not have a valid and current license or active subscription;
- Support for Beta Services.
Tribyl shall provide Customer with 99.8% availability to the Service (the “Service Availability”); and (ii) provide email support for the Service to Customer per coverage availability as set forth below (“Service Support”). Service Support shall only include assistance with issues which are exclusively due to an error with the Service (i.e., a failure of the Service to conform to the written specifications provided by Tribyl). Any support outside the scope of Service Support shall be provided by Tribyl on a time and materials basis. The Service Availability will be measured on a monthly basis, with all hours weighted equally, but the Service Availability measurement will exclude reasonable scheduled downtime for system maintenance, as well as any downtime resulting from outages of third party connections or utilities or other emergency reasons beyond Tribyl’s control (including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Tribyl employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Tribyl’s possession or reasonable control, and denial of service attacks).
Error Response Times
An “Error” means an error in the Services which significantly degrades the Services as compared to Tribyl’s published performance specifications. For each Error reported by Customer, Tribyl shall (i) assign a priority level to such Error in its discretion in accordance with the table below, and (ii) respond to Customer and provide status updates in accordance with the time periods set forth in the table below.
The Services are completely unavailable or performance is so poor as to render the Services unusable; or
data security breach or hack (whether actual or suspected) or attempted data security breach.
||Every 60 minutes
||Within 4 hours
A major functionality of the Services is unusable and results in limited functionality that affects a large number of users.
||Every 4 hours
||Within 12 hours
A loss of a function or resource of the Services that does not seriously affect Services functionality.
||Next business day
||Next bug fix or production release, if applicable
All other problems with the Services other than those that fall within the categories listed above.
||2 business days
||TBD on a case-by-case basis
||TBD on a case-by-case basis
Our headquarters are based in California, USA and so our regular business hours are Monday – Friday, 09:00 – 17:00 US PT (Pacific Time). Our Service Support is closed during major US holidays including:
- New Year's Day
- Presidents' Day
- Memorial Day
- Independence Day
- Labor Day
- Day after Thanksgiving
- Christmas Day
Customer Support Contact information:
If (i) the Service is unavailable to Customer due to defects with the Service beyond the Service Availability metric, or (ii) Tribyl fails to respond to a Customer Error report within the allotted time frame, then, as Customer’s sole and exclusive remedy (and Tribyl’s sole liability), (a) for each full hour in a month that the Service is unavailable beyond the Service Availability metric and (b) for each such response failure, Tribyl will credit Customer with one (1) day of free access to the Service. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of one (1) free month of access to the Services. Further, Tribyl will not grant a credit for any period in which Customer received any Services free of charge. Tribyl’s blocking of data communications in accordance with its policies shall not be deemed to be a failure of Tribyl to provide adequate service levels under this Agreement.
In order to receive service credits, Customer must notify Tribyl in writing within seventy-two (72) hours from the time of downtime or response failure (as applicable), and failure to provide such notice will forfeit the right to receive downtime credit.
EXCLUSIONS. Tribyl shall have no obligation to support: (i) altered or damaged Products or any portion of the Software incorporated with or into other software; (ii) any Product that is not the then current release or immediately previous sequential release; (iii) Product problems caused by Customer’s negligence, abuse or misapplication, use of Products other than as specified in the Tribyl’s user manual or other causes beyond the control of Tribyl; or (iv) Products installed on any hardware that is not supported by Tribyl. Tribyl shall have no liability for any changes in Customer’s hardware or software which may be necessary to use Products.
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.