Terms & Conditions

Last Revision : August 2019

TERMS AND CONDITIONS
Last Revision: [August 14th 2019]
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.


1. SERVICES AND SUPPORT


1.1 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.


1.2 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.


1.3 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 http://www.tribyl.com/terms-conditions.


2. RESTRICTIONS AND RESPONSIBILITIES


2.1 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).


2.2 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 any administrative functions of the Software.


2.3 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.


2.4 Services are subject to usage limits, including, for example, the number of Seats specified in the Order Form. If Customer exceeds these limits, Tribyl shall invoice the Customer as per Section 6.1 (Payment of Fees) below. Customer shall ensure that a User’s identity and password are not shared with any other individual.


2.5 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.


2.6 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.


2.7 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.


2.8 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, 2.6, 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.


2.9 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.


3. CONFIDENTIALITY


3.1 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).


3.2 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.


3.3 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, Tribyl may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.


3.4 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.


4. INTELLECTUAL PROPERTY RIGHTS


4.1 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.


4.2 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 the 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 (but excluding De-Identified Data and Aggregate Data, as defined below). Furthermore, Customer hereby grants Tribyl a worldwide, non-exclusive right and license to Use (i) de-identified and/or anonymized Customer Data sets (“De-Identified Data”), (ii) to create de-identified compilations and analyses of Customer Data that is combined with data from numerous other customers and third party data sources (“Aggregate Data”), (iii) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from De-Identified Data and Aggregate Data (“Analyses”), and (iv) to create, develop and enhance algorithms, machine learning and other generally available tools in connection with the Service Materials, De-Identified Data, Aggregate Data and Analyses. Tribyl will not (nor will it authorize any third party to) (i) distribute De-Identified Data, Aggregate Data and Analyses 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 any Customer’s end users, employees or contractors or any details regarding its or their use of the Services; or (ii) provide the Customer Data to a third party for such third party to use for its own benefit.


4.3 If Tribyl receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, 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.


5. 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.


6. PAYMENT OF FEES


6.1 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.


6.2 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.


7. TERMINATION


7.1 Subject to earlier termination as provided below, this Agreement is for the Term as specified in the Order Form.


7.2 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.


7.3 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.


7.4 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.

 

8. 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.


9. 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.
10. 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.


11. 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.


12. MISCELLANEOUS


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:
1. 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.


2. 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.


3. 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 (http://www.tribyl.com/terms-conditions), only for the then current release and immediately previous sequential release of the Software.


4. 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).


5. 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.


6. 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.
7. 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 : August 2019

SUPPORT AND MAINTENANCE SERVICES TERMS AND CONDITIONS
To the extent Tribyl, Inc. (“Company”) has become obligated for support and maintenance, the following will apply with respect to the Software so long as they remain Company’s standard terms and the Customer is in full compliance with the Agreement. Capitalized terms not defined in Section 5 below have the same meaning as in Company’s standard Terms and Conditions.


1. SUPPORT AND MAINTENANCE SERVICES. Support and Maintenance Services consist of (a) Error Correction and Telephone Support provided to a single consistent technical support contact concerning the installation and use of the then current release of the Software and the Previous Sequential Release, (b) E-mail Support, (c) Web Support, and (d) Software updates that Company in its discretion makes generally available to its support and maintenance customers without additional charge.


2. ERROR PRIORITY LEVELS. Company shall exercise commercially reasonable efforts (up to 16 hours per month) to correct any Error reported by Customer in the current unmodified release of the Software in accordance with the priority level reasonably assigned to such Error by Company.
• Priority A Errors - Company shall respond within one business day and promptly commence the following procedures: (i) assign Company engineers to correct the Error; (ii) notify Company management that such Errors have been reported and of steps being taken to correct such Error(s); (iii) provide Customer with periodic reports on the status of the corrections; and (iv) initiate work to provide Customer with a Workaround or Fix.
• Priority B Errors - Company shall exercise commercially reasonable efforts to include the Fix for the Error in the next regular Software maintenance release.
• Priority C Errors - Company may include the Fix for the Error in the next major release of the Software.


3. If Company believes that a problem reported by Customer may not be due to an Error in the Software, Company will so notify Customer. At that time, Customer may (1) instruct Company to proceed with problem determination at its possible expense as set forth below, or (2) instruct Company that Customer does not wish the problem pursued at its possible expense. If Customer requests that Company proceed with problem determination at its possible expense and Company determines that the error was not due to an Error in the Software, Customer shall pay Company, at Company’s then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable
related expenses incurred therewith. Customer shall not be liable for (i) problem determination or repair to the extent problems are due to Errors in the Product; or (ii) work performed under this paragraph in excess of its instructions; or (iii) work performed after Customer has notified Company that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received by Company). If Customer instructs Company that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer’s instructions, Company may, at its sole discretion, elect not to investigate the error with no liability therefor.


3. EXCLUSIONS. Company 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 Company’s user manual or other causes beyond the control of Company; or (iv) Products installed on any hardware that is not supported by Company. Company shall have no liability for any changes in Customer’s hardware which may be necessary to use Products due to a Workaround or maintenance release.


4. PREMIUM SUPPORT. To the extent Customer is entitled to Premium support: Telephone support will be expanded to 24 hours; Customer will be given access to expanded contact information, including technical support managers and engineers; Customer will be assigned a technical support engineer as primary contact during Company business hours (PST); the amount of time spent by Company to address Customer’s Error reports will not be limited to 8 hours per month; and Customer’s Error reports will be given priority over Error reports of the same priority level from Basic support customers.


5. DEFINITIONS.


• “E-mail Support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by Company to respond within one business day) concerning the installation and use of the then current release of the Software and the Previous Sequential Release.
• “Error” means an error in the Software which significantly degrades such Product as compared to the Company’s published performance specifications.
• “Error Correction” means the use of reasonable commercial efforts to correct Errors.
• “Fix” means the repair or replacement of object or executable code versions of the Software or documentation to remedy an Error.
• “Previous Sequential Release” means the release of the Software which has been replaced by a subsequent release of the same Product. Notwithstanding anything else, a Previous Sequential Release will be supported by Company only for a period of twelve (12) months after release of the subsequent release.
• “Priority A Error” means an Error which renders the Software inoperative.
• “Priority B Error” means an Error which substantially degrades the performance of the Software or materially restricts Customer’s use of such Product.
• “Priority C Error” means an Error which causes only a minor impact on the Customer’s use of the Software.
• “Telephone Support” means technical support telephone assistance between 7:00AM and 7:00PM Pacific Time on Company’s regular business days concerning the installation and use of the then current release of the Software and the Previous Sequential Release.
• “Web Support” means information available on the World Wide Web, including frequently asked questions, product documentation and bug reporting.
• “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Software.


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.