Tomitribe Support & Subscription T & C

Terms & Conditions 🔗

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING SOFTWARE OR SERVICES FROM TOMITRIBE. BY USING TOMITRIBE SOFTWARE OR SERVICES, CUSTOMER SIGNIFIES CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THIS TOMITRIBE SUPPORT AND SUBSCRIPTION AGREEMENT (“AGREEMENT”), AND ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN CUSTOMER MUST NOT USE TOMITRIBE SOFTWARE OR SERVICES.

This SUPPORT AND SUBSCRIPTION AGREEMENT (this “Agreement”) is entered into as of the effective date set forth in the applicable Order (as defined below) (the “Effective Date“) by and between Tomitribe Corporation, a Delaware corporation (“Tomitribe“) and the entity accepting this Agreement, or on whose behalf this Agreement is accepted (“Customer”). (Tomitribe and Customer are each, singularly a “Party” and collectively referred to herein as the “Parties.”) This Agreement consists of this preamble, the Terms and Conditions set forth in Exhibit A hereto, the Tomitribe End User License Agreement set forth at http://www.tomitribe4dev.wpengine.com/legal/eula/, and the Tomitribe Support and Subscription Terms & Conditions set forth in Exhibit B hereto (“Subscription Terms & Conditions”), as well as any quote or purchase order (each an “Order“) executed by the Parties, or issued by Customer and accepted by Tomitribe, during the Term of this Agreement.  As set forth in Order, the terms of this Agreement may be modified at any time, in Tomitribe’s sole discretion.

AGREEMENT

1. AGREEMENT SCOPE. This Agreement is a master agreement that provides for the license and support  by Tomitribe to Customer of Licensed Software for use by Customer in accordance herewith, pursuant to the Order submitted by Customer and accepted in writing by Tomitribe.  To achieve significant cost savings, Customer has elected to have Tomitribe utilize and support Community Software (defined below) to the maximum extent possible. Community Software is open source software developed by a diverse set of contributors under the governance of the Apache Software Foundation and other open source foundations (Open Source Community).Tomitribe is one of many contributors to the Open Source Community and does not have exclusive control of Community Software, Tomitribe cannot guarantee: (a) quality of Community Software; (b) delivery of patches, updates or releases from the Open Source Community under any SLA; or (c) acceptance of any code contributed to Open Source Community made by Tomitribe on Customer’s behalf.To meet SLAs, Tomitribe will deliver patches or updates of Community Software directly to Customer under this agreement as Licensed Software and customer understands that: (a) only the modified portions of Community Software constitute Licensed Software; and (b) Tomitribe contributes to the Open Source Community and such Customer can neither own nor have exclusive rights to the Community Software or modifications therein made by Tomitribe while delivering service under this agreement.
2. DEFINITIONS. ‎“Licensed Software” means software licensed by Tomitribe to Customer pursuant to this Agreement, ‎which may include Tomitribe-proprietary ‎software and/or Third-Party Software, defined below, and, ‎in any case, will include any patches, updates and other Tomitribe ‎proprietary ‎software provided by Tomitribe to Customer under this Agreement.  “Third-Party Software” means ‎software other than Tomitribe-‎proprietary software, and includes Community Software.  “Supported ‎Software” means (a) the Licensed Software and (b) the third-party open ‎source computer ‎software made available under an Open Source Initiative approved license (“Community Software”) ‎licensed by or for Customer ‎from a third party and that are specifically listed in the Orders as ‎Supported Software. Software that is not ‎explicitly listed in writing on the ‎Orders do not and shall not under any circumstances constitute ‎Licensed Software or Supported Software. In addition to any initial Licensed ‎Software to be ‎licensed and provided pursuant to any initial Order(s) attached hereto, the Parties may subsequently ‎enter into additional Orders. ‎
3. Entire Agreement. This Agreement, together with any Exhibits and Orders, attached hereto, and, together with any Orders accepted in writing by Tomitribe during the Term of this Agreement and which expressly reference this Agreement (all of which are hereby incorporated herein by this reference), completely and exclusively states the entire agreement of the Parties regarding the subject matter herein, and supersedes all prior proposals, agreements, or other communications between the Parties, whether oral or written, regarding such subject matter hereof.  Except for the Subscription Terms & Conditions, this Agreement shall not be modified except by a subsequently dated, written amendment signed on behalf of Tomitribe and Customer by their duly authorized representatives.

EXHIBIT A

TOMITRIBE SUPPORT AND SUBSCRIPTION AGREEMENT
TERMS AND CONDITIONS

These Tomitribe Support and Subscription Agreement Terms and Conditions (“Terms and Conditions”), set forth the terms and conditions which, along with any additional terms included in an applicable Purchase Orders or Change Orders (the “Orders”) to which this Exhibit A is attached, and into which this Exhibit A is hereby incorporated and made a part thereof. In the event of any conflict between these Terms and Conditions and those contained in any Orders, these Terms and Conditions shall control.

1. DEFINITIONS 🔗

The following capitalized terms shall have the meaning set forth below.  Other defined terms shall have the meanings set forth where they are first underlined.

1. “Agreement” means this Customer Agreement which consists of these Terms and Conditions, any additional Exhibits and attachments hereto, the Orders signed and accepted by Tomitribe, and the Subscription Terms & Conditions.
2. “Business Day” means any weekday other than a day designated as a holiday under the Tomitribe holiday schedule, as revised annually and from time to time.
3. “Core” means the processor or execution core contained in the same integrated circuit within a computer’s central processing unit, whether such Cores are virtual or physical. In the event that Customer is running more than one virtual machine on a Core, each such virtual machine shall count as one Core.
4. “Documentation” means the documentation provided with the Licensed Software, together with any and all documentation for any new releases, corrections, updates and applicable training materials furnished by Tomitribe to Customer under this Agreement
5. “EULA” means the End User License Agreement that includes license and support of the Licensed Software, which is located at http://www.tomitribe4dev.wpengine.com/legal/eula/, and which is hereby incorporated into and made a part of this Agreement.
6. “License” means the right to use, for the License Term, the specific edition of the Licensed Software, subject to the applicable quantitative limitations, for which such right has been purchased, as set forth in the applicable Orders.
7. “License Term” means the period of time for which a License, and/or support subscription is valid, as set forth in the applicable Orders.
8. “Non-Production Purposes” means use of the Licensed Software for any non-production purposes, including demonstration, marketing, testing, the provision of Support Services, and training purposes.
9. “Order” means any quote or purchase order signed and accepted by both Tomitribe and Customer, pursuant to which Customer may order Licensed Software and Support Services.
10. “Support Services” means the technical support services related to the use of the Supported Software, as set forth on an applicable Orders, and as further described in Tomitribe’s Subscription Terms & Conditions, as the same may be modified by Tomitribe from time to time, and which is hereby incorporated into and made a part of this Agreement.
11. “Term” shall have the meaning set forth in Section 5.
12. “Trademarks” means the trademarks, trade names, and service marks used in commerce by Tomitribe, whether registered or not, as may be modified or supplemented upon notice from Tomitribe
13. “Update” means any update, upgrade, bug fix, error correction, enhancement or revision to the Supported Software made generally available by Tomitribe to Customer during the Term of this Agreement

2. LICENSE GRANTS FOR SOFTWARE 🔗

1. License Grant for Licensed SoftwareAs set forth on the applicable Purchase Order, Tomitribe hereby grants to Customer a limited non-exclusive, non-transferable, license for the term set forth in the Order to: (i) install the Licensed Software in executable form in an aggregate amount equal to the number and type described in the applicable Order; (ii) use the Licensed Software only for Customer’s internal business needs; (iii) use the Documentation to support the use of the Licensed Software; and (iv) make a commercially reasonable number of copies of the Licensed Software in executable form only, for non-productive backup purposes; provided, however, that Customer will reproduce and include all of Tomitribe’s copyright notices and proprietary legends on each such copy. At no time will Customer sublicense, sell, rent, lease, transfer, distribute or otherwise commercially exploit or make the Licensed Software and/or Documentation available to any third party. Customer and all of its users for whom licenses are purchased hereunder shall hereby be bound by and comply with the terms set forth in the EULA.
2. No Implied Licenses. The Licensed Software, including any copies thereof, is and shall remain at all times the exclusive property of Tomitribe. Customers acquire no rights or licenses therein, by implication, estoppel or otherwise, except those expressly granted herein.  Tomitribe is the sole and exclusive owner of all right, title, and interest in and to the Licensed Software (excluding any open source third-party software) and all copies thereof including all Updates, derivations, and modifications thereto including, but not limited to, ownership of all intellectual property rights (collectively, “Intellectual Property”).  This Agreement does not provide Customer with title or ownership of the Intellectual Property, but only a right of limited use.  Modification of the source code will void Customer’s warranty set forth herein.  Customer agrees to inform Tomitribe promptly of any infringement or other improper action with respect to the Intellectual Property that comes to Customer’s attention.  Customer recognizes and acknowledges the exclusive right of Tomitribe and/or its suppliers in and to all patents, trademarks, service marks, trade names, copyrights, and other intellectual property and proprietary rights in and to Intellectual Property and that such Intellectual Property is the sole and exclusive property of Tomitribe.  Customer waives its right to contest the validity and/or ownership of such Intellectual Property.
3. Restrictions. Customer specifically agrees to limit its use of the Licensed Software as expressly authorized in this Agreement. Notwithstanding the foregoing, Customer specifically agrees not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Licensed Software or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Licensed Software, and/or Documentation;  (iii) use the Licensed Software to knowingly (a) infringe on the intellectual property rights of any third-party or any rights of publicity or privacy; (b) violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (c) vault defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (d) vault obscene, pornographic or indecent data in violation of applicable law; or (e) propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (iv) use the Licensed Software in any application that may involve risks of death, bodily injury, property damage or environmental damage, or in any life support applications, devices or systems; (v) use the number per type of licenses in excess of the Cores specified in the Order; (vi) gain or attempt to gain unpermitted access by any means to any Tomitribe computer system, network, or database, and/or (vii) file copyright or patent applications that include the Licensed Software or any portion thereof.
4. Additional Restrictions. Customer agrees not to: (i) copy or use the Licensed Software in any manner except as expressly permitted in this Agreement; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Licensed Software to any third party; (iii) use the Licensed Software for providing time-sharing services, service bureau services or as part of an application services provider or as a service offering; (iv) alter or remove any proprietary notices in the Licensed Software; or (v) make available to any third party any analysis of the results of operation of the Licensed Software, including benchmarking results, without the prior written consent of Tomitribe.
5. Password Protection of Service. Customer shall be responsible for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to Customer for the purpose of accessing and using the Licensed In the event that Customer makes such Passwords available to any third-party, Customer shall be liable for all actions taken by such third-party in connection therewith. Customer shall not disclose or make available Customer’s Passwords other than to Customer’s authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Licensed Software, and will notify Tomitribe promptly of any such unauthorized use.
6. Agreement to the Terms of the EULA. Customer represents and warrants to Tomitribe that it has carefully reviewed the EULA and has agreed to all of its terms and conditions thereof. By installing, downloading, accessing or otherwise using the Licensed Software, Customer agrees to be bound by the terms of the EULA.
7. Books and Records. Customer will, during the Term of this Agreement and for a period of two (2) years from the expiration thereof maintain accurate records of Customer’s use of the Licensed Software sufficient to demonstrate Customer compliance with the terms of this Agreement.
8. Audit Rights. During the period in which the Customer is obligated to maintain such records, Tomitribe, or its third-party auditor, may, upon reasonable notice to Customer, audit such records to verify that Customer has (a) reported accurate software and hardware configuration associated with all Orders; (b) paid all applicable fees; and (c) otherwise complied with the terms of this Agreement and all Orders. Tomitribe may conduct no more than one (1) audit in any twelve (12) month period, unless Tomitribe has determined, in its reasonable discretion that during the prior audit period Customer has underpaid Tomitribe by more than 5% or materially failed to maintain accurate records. Audits will be conducted during normal business hours and Tomitribe will use commercially reasonable efforts to minimize the disruption of Customer normal business activities. Tomitribe, and any third-party auditor, shall not have physical access to Customer computing devices in connection with any such audit, without Customer’s prior written consent. Customer will reasonably cooperate with Tomitribe and/or its third-party auditor and will promptly pay directly to Tomitribe any underpayments revealed by such audit. Customer will promptly reimburse Tomitribe for all reasonable costs and expenses incurred by Tomitribe for such audit if: (i) such audit reveals an underpayment by Customer of more than five percent (5%) of the fees payable by Customer to Tomitribe for the period audited, or (ii) such audit reveals Customer has materially failed to maintain accurate records thereof.

3. OTHER OBLIGATIONS OF TOMITRIBE AND CUSTOMER 🔗

1. Support Services. Tomitribe agrees to provide technical support and subscription services as set forth in the Subscription Terms & Conditions set forth in Exhibit B hereto.
2. Sensitive Customer Data. Tomitribe requires no sensitive consumer, financial or patient data from Customer in order to fulfill its technical support obligations. Customer is in control of all logs and files provided to Tomitribe.  Therefore, Customer agrees that, prior to transmitting any logs or files to Tomitribe, Customer shall first redact all sensitive consumer, financial and patient data, including but not limited to client information, patient information, medical information, personal identification information (such as names, dates of birth, social security numbers and drivers’ license numbers), credit card numbers, account numbers, and all other information that Customer reasonably believes to be sensitive, so that Tomitribe has no access to any such sensitive data.

4. PRICES, PAYMENTS AND TAXES 🔗

1. Prices. Prices shall be the prices set forth in the applicable Orders (collectively, the “Fees”). No refunds will be made except as provided in Section 7.1 or Section 7.2 under “Warranties” set forth below. Customer shall be liable for payment of all taxes (including but not limited to the Goods and Services Tax and the Provincial Sales Tax, and all taxes, assessments, duties, tariffs, imposts, permits sales, use, excise, import, export, value-added, or other similar tax, duty or fee) that are levied upon and related to the performance of obligations or exercise of rights under this Agreement.  Tomitribe may be required to collect and remit taxes from Customer, unless Customer provides Tomitribe with a valid tax exemption certificate.  Tomitribe shall invoice Customer for all such taxes.  In no event will either Party be responsible for any taxes levied against the other Party’s net income.
2. Payment. All invoices will be due and payable in U.S. Dollars within thirty (30) calendar days after invoice date.  Invoicing will occur via email.  Customers with multi-year contracts will be invoiced annually in the month preceding the renewal date.  Tomitribe may impose late charges on overdue payments at a rate equal to the lesser of two percent (2%) per month or the highest rate permitted by law, calculated from the date payment was due until the date payment is made.  Customer shall pay all expenses incurred in collection, including reasonable attorneys’ fees.  Tomitribe may decline to provide any Licensed Software or Support Services if, in Tomitribe’s reasonable opinion, circumstances exist which raise doubt as to Customer’s ability or willingness to pay as provided herein.  If a Customer defaults, Tomitribe shall have other rights and remedies as may be provided by law.  If Support Services are withheld in accordance with the foregoing, in order to reinstate such Support Services, Customer will be responsible for paying all Fees associated with back Support Services from the date that such Support Services were withheld through to the then-current date.
3. Lapsed Fees. If Customer has lapsed in the payment of Fees due hereunder all such Fees, charges and costs must be paid in full prior to the recommencement of Licensed Software and/or Support Service by Tomitribe. Customer will be responsible for paying all Fees associated with back Support Services from the date that such Support Services were stopped through to the then-current date.

5. TERM AND TERMINATION 🔗

1. Term. The “Term” will be for an initial term of twelve (12) months following the Effective Date.
2. Termination for Material Breach. This Agreement may be terminated by either Party upon thirty (30) calendar days written notice for a material breach by the other Party, unless such other Party cures the breach within the thirty (30) day notification period. Customer agrees upon any termination to destroy the Licensed Software, together with all copies in any form. 
3. Termination for Changes to Applicable Law. This Agreement may be terminated by either Party if the continued relationship, the provision of the services, and/or the transactions hereunder would violate any applicable law (whether such law is existing at the time of this Agreement or thereafter modified or enacted) or result in material costs or liabilities to the terminating Party that were not anticipated as part of the Agreement.
4. Termination or Suspension by Tomitribe. Tomitribe may terminate and/or suspend Customer’s license grant and/or suspend, terminate or limit any of Customer’s use of the Licensed Software without liability, with or without notice, based on Tomitribe’s reasonable belief that: (i) the Licensed Software is being used in breach of Section 2 or otherwise in a potentially harmful or unlawful manner; (ii) the use of the Licensed Software adversely affects Tomitribe’s security network infrastructure or its service to others; (iii) a court or other governmental authority having jurisdiction issues an order prohibiting Tomitribe from furnishing the Licensed Software to Customer; or (iv) Customer fails to pay undisputed charges after being given notice. In the event that Customer’s use of the Licensed Software is suspended, Tomitribe will use commercially reasonable efforts to inform Customer and will work with Customer to resolve such issues.
5. Effect of Termination. Upon termination hereunder, Customer shall (i) return or destroy the applicable Licensed Software or Documentation, and any other software or materials licensed to Customer hereunder, and (ii) return related materials licensed to Customer hereunder.
6. Payment Obligations Ongoing. Termination of this Agreement does not relieve Customer of any outstanding payments due or any liability arising prior to termination.

6. CONFIDENTIALITY 🔗

1. Definition. “Confidential Information” means any proprietary, confidential and/or trade secret information of the Party disclosing (“Discloser“) such information relating to, among other things, the Licensed Software and Documentation, technology, specifications, manufacturing methods, know-how, business or marketing plans, business relationships, information labeled “confidential” or the like, information a reasonable person knew or should have known to be confidential, license keys, Tomitribe’s pricing, product roadmaps and strategic marketing plans, non-public information about the Licensed Software, and the terms of this Agreement and/or the Orders. Confidential Information shall not include information that: (i) was in the public domain when disclosed; (ii) becomes public domain after disclosure, other than as a result of the violation of this Agreement; (iii) was already in the Receiving Party’s (“Recipient’s“) possession when disclosed and was not acquired directly or indirectly from the Discloser; (iv) is shown by written evidence to have been developed by the Recipient independently after disclosure without benefit of the Confidential Information; or (v) was received after disclosure from a third-party who did not require it to be held in confidence and who did not acquire it directly or indirectly from the Discloser.
2. Protection of Confidential Information. Confidential Information shall be used only in the manner contemplated by this Agreement and shall not be intentionally disclosed to third-parties without the Discloser’s written consent. The Recipient will use at least the same degree of care to safeguard Confidential Information that it uses to protect its own confidential and proprietary information, but in no event less than reasonable care under the circumstances.
3. Use of Confidential Information. Recipient may use Confidential Information of Discloser: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the Parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder.
4. Exceptions. Recipient’s obligations with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third-party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
5. Data Privacy. Customer agrees that Tomitribe may process technical and related information about Customer’s use of the Licensed Software, which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable usage statistics to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information to other companies in the Tomitribe worldwide group of companies from time to time. To the extent that this information constitutes personal data, Tomitribe shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under applicable data protection legislation.

7. WARRANTIES, DISCLAIMERS AND REMEDIES 🔗

1. Software Performance Warranty and Remedy. Tomitribe warrants to Customer that the Licensed Software will, for a period of thirty (30) days following notice of availability for electronic download or delivery (“Software Warranty Period”), substantially conform to the applicable Documentation, provided that the Licensed Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by persons other than Tomitribe. Tomitribe will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, either replace that Licensed Software or correct any reproducible error in that Licensed Software reported to Tomitribe by Customer in writing during the Software Warranty Period. If Tomitribe determines that it is unable to correct the error or replace the Licensed Software, Tomitribe will refund to Customer the amount paid by Customer for that Licensed Software, in which case the License for that Software will terminate. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS REMEDY WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO NONCONFORMANCE OF SOFTWARE.
2. DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 7.1, ALL PRODUCTS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TOMITRIBE MAKES NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING THERETO. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOMITRIBE AND ITS AGENTS MAKE NO OTHER WARRANTIES UNDER THIS AGREEMENT.  WITHOUT LIMITATION, TOMITRIBE AND ITS AGENTS DO NOT WARRANT THAT THE LICENSED SOFTWARE OR SUPPORTED SOFTWARE WILL OPERATE UNINTERRUPTED OR BE FREE FROM DEFECTS OR WILL MEET CUSTOMER’S REQUIREMENTS.  ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE, ARE HEREBY EXCLUDED TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY TOMITRIBE AND ITS AGENTS.  TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIODS ABOVE.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY.  THESE WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.  THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.  IN THE EVENT THAT APPLICABLE LAW DOES NOT PERMIT SOME OR ALL OF THE DISCLAIMER SET FORTH HEREIN, ANY LIABILITY WILL BE SUBJECT TO THE DAMAGES CAP IN THE LIABILITY LIMITATION OF SECTION 8.3.
3. DATA DISCLAIMER. CUSTOMER EXPRESSLY RECOGNIZES THAT TOMITRIBE DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, OR THIRD-PARTY PRODUCTS PROCESSED BY OR USED IN CONJUNCTION WITH THE LICENSED SOFTWARE OR SUPPORT SERVICES PROVIDED HEREUNDER
4. SECURITY BREACH DISCLAIMER. CUSTOMER EXPRESSLY RECOGNIZES, ACKNOWLEDGES AND AGREES THAT TOMITRIBE SHALL HAVE NO RESPONSIBILITY OF ANY KIND FOR CORRUPTION, SECURITY LOSS, THEFT OR ALTERATION OF DATA, SPYWARE, VIRUSES OR SECURITY BREACHES.
5. EXCLUSIVE REMEDY. THE PROVISIONS SET FORTH THIS SECTION 7 STATE TOMITRIBE’S ENTIRE RESPONSIBILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL BREACHES OF WARRANTY.

8. LIMITATION OF LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES 🔗

1. EXCLUSION OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR AGENTS BE LIABLE TO THE OTHER OR TO ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER BASED UPON CONTRACT, NEGLIGENCE, TORT, PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSSES OR DAMAGES. THE FOREGOING SHALL NOT APPLY TO CUSTOMER’S BREACH OF SECTIONS 2 AND 4 ABOVE.
2. DISCLAIMER OF CERTAIN DAMAGES. IN NO EVENT SHALL TOMITRIBE BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO ANY SOFTWARE COMPONENTS THAT ARE LICENSED UNDER A LICENSE APPROVED BY THE OPEN SOURCE INITIATIVE OR SIMILAR OPEN SOURCE OR FREEWARE LICENSE AND WHICH ARE INCLUDED IN, EMBEDDED, UTILIZED BY, PROVIDED OR DISTRIBUTED WITH THE LICENSED IN NO EVENT SHALL CUSTOMER OR TOMITRIBE BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOMITRIBE SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN THE DELIVERY OR FURNISHING OF THE LICENSED SOFTWARE, DOCUMENTATION, THE SUPPORT SERVICES OR THE TRAINING SERVICES.  THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO A BREACH BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2 OF THIS AGREEMENT.
3. DAMAGES CAP OTHER THAN FOR THE INDEMNITIESS. SUBJECT TO SECTIONS 8.1, 8.4, AND 8.8 AND TO THE EXTENT PERMIITED BY APPLICABLE LAW, IN NO EVENT SHALL TOMITRIBE’S AGGREGATE, CUMULATIVE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO POTENTIAL LIABILITY,  AND LEGAL FEES  EXCEED THE LESSER OF (A) AMOUNTS CUSTOMER WAS REQUIRED TO PAY TOMITRIBE UNDER THIS AGREEMENT FOR THE LICENSED SOFTWARE, THE SUPPORT SERVICES AND/OR THE TRAINING SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY, AND (B) ONE-HUNDRED FIFTY THOUSAND U.S. DOLLARS ($150,000).
4. DAMAGES CAP FOR INDEMNITIES. SUBJECT TO CLAUSE 8.1, 8.3 AND 8.8, AND TO THE EXTENT PERMIITED BY APPLICABLE LAW, IN NO EVENT SHALL TOMITRIBE’S AGGREGATE, CUMULATIVE LIABILITY TO CUSTOMER FOR BREACH OF SECTIONS 7.1 AND 10.1 EXCEED ONE MILLION U.S. DOLLARS ($1,000,000).
5. Customer Environment. Tomitribe shall bear no liability to Customer or to any third-party resulting from Customer’s decision not to implement any reasonable change to Customer’s technical environment that supports the Supported Software that may be advised by Tomitribe in writing; and Customer shall hold Tomitribe and its agents harmless from and against any suit or proceeding (including reasonable attorneys’ fees) brought against Tomitribe and/or its agents arising directly from such a failure to provide the necessary access and/or support for Tomitribe to implement any such change. Further, Customer agrees to inform Tomitribe of any Customer system change that may reasonably be expected to affect Tomitribe’s ability to perform hereunder.
6. RISK ALLOCATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ALLOCATION OF RISK CONTAINED IN THIS SECTION 8 IS REFLECTED IN THE FEES, AND IS ALSO IN RECOGNITION OF THE FACT THAT, AMONG OTHER THINGS, IT IS NOT WITHIN TOMITRIBE’S CONTROL HOW AND FOR WHAT PURPOSE THE LICENSED SOFTWARE AND/OR SUPPORT SERVICES ARE USED BY CUSTOMER.
7. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A BARGAINED FOR REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
8. NOTHING IN THIS SECTION 8 OR AGREEMENT SHALL LIMIT OR EXCLUDE LIABLIITY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY THE WILLFUL OR NEGLIGENT CONDUCT OF EITHER PARTY; OR (ii) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

9. INDEMNIFICATION 🔗

1. Mutual. Each Party (“Indemnitor”) shall indemnify, defend and hold the other Party and its directors, officers, employees, agents and independent contractors (“Indemnitee”) harmless from and against, any and all suits, actions and proceedings, claims, liabilities, losses, damages, expenses (including attorneys’ fees) and costs (collectively, “Claims”), made against an Indemnitee by a third party for personal injury or tangible property damage, but only to the extent arising solely from: (i) any gross negligence or reckless act, or any intentional misconduct of the Indemnitor, or its directors, officers, employees, agents or independent contractors in the performance of this Agreement; or (ii) any violation of any laws, statues or governmental regulations. Notwithstanding the foregoing, Tomitribe’s indemnity obligations are subject to the Damages Cap in the Limitation of Liability provisions of Section 8.3.
2. By Customer. Customer shall further indemnify, defend and hold Tomitribe and its directors, officers, employees, agents and independent contractors harmless from and against, any and all Claims, made against Tomitribe by a third party arising out of any use or distribution by Customer of the Licensed
3. The indemnification obligations of the Parties in this Section 9 are contingent upon: (i) the Indemnitee promptly notifying the Indemnitor in writing of any claim which may give rise to a Claim indemnification hereunder; (ii) the Indemnitor being allowed to control the defense and settlement of such Claim; and (iii) the Indemnitee cooperating with all reasonable requests of the Indemnitor (at Indemnitor’s expense) in defending or settling a Claim. The Indemnitee shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing.
4. The Parties waive any and all other rights to indemnity.

10. INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS COVERAGE 🔗

1. Obligation. Subject to the damages cap set forth in Section 8.3 Tomitribe will, at its expense defend a claim brought against Customer by a third party during the Term alleging that the Licensed Software (excluding the Tomitribe Community Software) infringes a patent registered in the United States, or any copyright or trademark registered in the territory of Customer’s use of the Licensed Software (“Claim”).
2. Remedies. If the Licensed Software is found to infringe, or in Tomitribe’s opinion is likely to be found to infringe, any valid patent registered in the United States, or any copyright or trademark registered in the territory of Customer’s use of the Licensed Software, Tomitribe may, at its expense and option: (i) obtain the right for End User to continue to use the Licensed Software; (ii) modify the Licensed Software so that it becomes non-infringing; or (iii) in the event that neither (i) or (ii) are commercially feasible, terminate End User’s license to use the Licensed Software and promptly refund to the End User (via Customer) any pre-paid, but unused fees.
3. Exclusions. Tomitribe will have no obligation to Customer with respect to any Claim arising out of: (i) Customer’s sale or use of any version of the Licensed Software not made available directly from Tomitribe; (ii) the failure to use an Update made available by Tomitribe that would have avoided such infringement; (iii) a modification of the Licensed Software that is not performed by Tomitribe if liability for the Claim would have been avoided in the absence of such modification; (iv) the combination, operation, or use of the Licensed Software with any other products or equipment, if liability for the Claim would have been avoided in the absence of such combination, operation, or use, or (v) damages attributable to the use of a non-Tomitribe product or service. Customer will reimburse Tomitribe for any expenses, costs and/or damages that result from any of the actions or situations described in subsections (i) through (v) above.
4. To be eligible for the protections under this Section 10, Customer must notify Tomitribe within seven (7) days of its receipt of any notification of the existence of any threatened or pending Claim by a third person and give Tomitribe reasonable assistance and information in the defense or settlement of the Claim. Tomitribe will have sole control over the defense and settlement of the Claim. Customer’s counsel will have the right to participate in the defense of the Claim, at Customer’s own expense. Customer will not, without the prior written consent of Tomitribe, settle, compromise or consent to the entry of any judgment with respect to the pending or threatened Claim.
5. THE FOREGOING PROVISIONS OF THIS SECTION 10 STATE ALL OBLIGATIONS OF TOMITRIBE AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE LICENSED SOFTWARE OR THE SERVICES

11. MISCELLANEOUS 🔗

1. Assignment. This Agreement may not be assigned by either Party (other than to an affiliate which shall assume the obligations of its assignor by written instrument) without the written consent of Tomitribe, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may not assign this Agreement to a direct competitor of Tomitribe.  Any attempt to assign this Agreement without such written consent shall be null and void.  This Agreement binds the Parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.
2. Export Control. Customer acknowledges that the goods, software and technology acquired from Tomitribe are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. Customer acknowledges that remote access to the Licensed Software may in certain circumstances be considered a re-export of Licensed Software, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. Customer agrees and certifies that software, products, services, and/or all related technical information and materials that Customer receives from Tomitribe will not be exported or re-exported outside of the United States (“U.S.”) except as authorized and permitted by the laws and regulations of the U.S., and export or re-export contrary to U.S. laws is prohibited. Customer agrees to comply, at its own expense, with any and all foreign governmental requirements relating to Customer’s exports from the U.S., importation and use outside of the U.S., and/or re-exports from abroad of such products, services, and/or all technical information and materials.  Customer will indemnify, defend, and hold harmless Tomitribe from and against any claim, loss, liability, or damage suffered by Tomitribe related to Customer’s breach of this provision.  Customer also agrees that Tomitribe may withhold provision of software, products, services, and/or technical information and materials under this Agreement if Tomitribe believes, in good faith, that Customer has breached this provision.
3. Government End-User Notice. The Licensed Software is a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.
4. Customer understands that employees of Tomitribe may have access to native data to perform hereunder. Customer warrants and represents that none of this data requires protection from access by foreign persons because it contains technical information regarding defense articles or defense services within the meaning of the International Traffic in Arms Regulations (22 CFR 120) or technical data within the meaning of the Export Administration Regulations (15 CFR 730-774).  If any of this data does contain any such information, Customer will notify Tomitribe of the specific data that contains such information and acknowledges that special storage and service rates will apply thereto.
5. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes or fuel crises, provided that such Party gives prompt written notice thereof to the other Party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than thirty days.
6. Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Central District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Los Angeles County. The Parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. A breach by either Party of Section 6 would cause irreparable harm for which the non-breaching Party shall be entitled to seek injunctive relief.
7. Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding to the Parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
8. Notices.  Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given in writing and delivered in person or e-mail, if acknowledged received by return e-mail or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified below. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 11.8.

   If to Tomitribe:
   Tomitribe Corporation
   Attn: Legal Department
   1519 6th Street, Suite 503
   Santa Monica, CA 90401
   Email: [email protected]

9. Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
10. Severability & Survival. If any provision of this Agreement is found to be invalid or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and, provided that the fundamental terms and conditions of this Agreement remain legal and enforceable, the remainder of this Agreement shall remain operative and binding on the Parties. The following provisions shall survive any termination of this Agreement: Section 2 and Section 4 through and including Section 11.
11. Relationship with Third Parties. This Agreement does not create any rights for any person or entity who is not a party to it and no such person shall be entitled to enforce any of its terms or rely on this Agreement in any way.
12. Headings. All headings used herein are for convenience of reference only and shall not in any way affect the interpretation of this Agreement.

EXHIBIT B

TOMITRIBE SUPPORT AND SUBSCRIPTION
TERMS AND CONDITIONS

With respect to each Order pursuant to which Customer purchases Support Services, Tomitribe shall provide Technical Support and Subscription Services (each, as defined herein) to Customer per the terms of this Exhibit B and such Order. In the event of any conflict between this Exhibit B and such Order, the terms of this Exhibit B shall control. The applicable Tomitribe entity, the Supported Software, supported hardware, and the purchased Support Services level will be set forth on the Order.

1. Definitions
   1. “Error” means a failure in the Software to materially conform to the specifications that Tomitribe has agreed to deliver, as described in the applicable product documentation (“Documentation”).
   2. “Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by Tomitribe for production deployment or use. Modified Code excludes customizable Software options for which Tomitribe offers Services.
   3. “Services Fees” means the fees for Services specified in a corresponding Tomitribe or reseller invoice.
   4. “Services Period” means the period for which Customer has purchased the Services and any subsequent renewal periods and shall commence for Software Licenses for which Services are optional, on the date of purchase of the Services.
   5. “Severity” is a measure of the relative impact an Error has on the use of the Software, as determined by Tomitribe, and only applies toward production support.
   6. “Software” means software offered by Tomitribe, and all components shipped with the Software, including Open Source components.
   7. “Subscription Services” means the provision of Maintenance Releases, Minor Releases and Major Releases (each defined below), if any, to the Software, as well as corresponding Documentation, to Customer.
      1. “Maintenance Release” or “Update” means a generally available release of the Software that typically provides maintenance corrections or fixes only, designated by Tomitribe by means of a change in the digit to the right of the second decimal point (e.g. Software 5.0 >> Software 5.0.1).
      2. “Minor Release” means a generally available release of the Software that (i) introduces a limited amount of new features and functionality, and (ii) is designated by Tomitribe by means of a change in the digit to the right of the decimal point (e.g., Software 5.0 >> Software 5.1).
      3. “Major Release,” also known as an “Version Upgrade,” means a generally available release of the Software that (i) contains functional enhancements or extensions, and (ii) is designated by Tomitribe by means of a change in the digit to the left of the first decimal point (e.g., Software 5.0 >> Software 6.0).
   8. “Technical Support” means the provision of telephone or web-based technical assistance by Tomitribe to the Customer’s technical contact(s) at the corresponding Services level purchased by the Customer and according to Tomitribe Support Guidelines.
   9. “Third Party Products” means any software or hardware that (i) is manufactured by a party other than Tomitribe and (ii) has not been incorporated into the Software.