Triblio Platform Terms of Service
Last Updated April 22, 2020
BEFORE USING TRIBLIO’S PLATFORM APPLICATION (AS DEFINED BELOW), PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE SUBSCRIPTION AGREEMENT EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” THEREIN (“CUSTOMER”) AND TRIBLIO INC. (“TRIBLIO”), PURSUANT TO WHICH THE CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE PLATFORM APPLICATION (THE “SUBSCRIPTION AGREEMENT”). THESE TERMS AND THE SUBSCRIPTION AGREEMENT TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND TRIBLIO, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION BY TRIBLIO AND CUSTOMER OF THE SUBSCRIPTION AGREEMENT (THE “AGREEMENT”).
1. The Platform Application.
(a) Access and Availability. Triblio will make the Platform Application available to (a) Customer and (b) individuals who are authorized by Customer to use the Platform Application on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Triblio at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”). Triblio hereby grants the Customer and its Users a limited, non-exclusive right to access and use one instance of the Platform Application, in each case during the Subscription Term and in accordance with this Agreement (including the specific access rights and limitations set forth in the Subscription Agreement) (the “Subscription”). Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Triblio with respect thereto). “Platform Application” means the online, website application provided by Triblio via http://www.Triblio.com or at such other designated URL as Triblio may assign from time to time (including all components thereof, on an individual and collective basis).
(b) Subscription Term. Customer’s initial subscription term for the Platform Application commences on the expected “Subscription Start Date” stated in the Subscription Agreement, or, if none is provided in the Subscription Agreement, the day Users’ login names and a password are issued to Customer to access the Platform Application under the Subscription Agreement (the “Subscription Start Date”). The Subscription will continue for the “Initial Subscription Term” specified in the Subscription Agreement (the “Initial Subscription Term”), and will automatically renew for successive one (1) year periods (each, a “Renewal Term”) at the Platform Application subscription price in effect on a generally commercially available basis at the time of the renewal, based on the actual number of Users on Platform Application and product functionality being used by Customer, unless (i) either party gives the other party written notice of nonrenewal at least thirty (30) days prior to the end of the Initial Subscription Term or the Renewal Term then in effect or (ii) the parties mutually execute a separate Subscription Agreement for such renewal, in which case (a) the separate mutually executed renewal Subscription Agreement will be deemed to be an addendum to and become part of the Agreement, (b) the renewal term set forth in such separate mutually executed renewal Subscription Agreement will be deemed to be a “Renewal Term” hereunder, and (c) this sentence will continue to apply for further subsequent renewals. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
(c) Customer Affiliates. The Subscription is granted solely to the Customer and its Users, and not any other third parties (specifically, not to any of Customer’s Affiliates), unless it is otherwise set forth in the Subscription Agreement. Customer’s Affiliates may purchase Subscriptions to the Platform Application under separate Subscription Agreements. If any of Customer’s Affiliates are granted any right to access or use the Platform Application hereunder, Customer will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of this Agreement. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
(d) Service Level Agreement and Support. Triblio will provide the general maintenance services and technical support described in the Service Level Agreement (“SLA”) set forth in Schedule A.
2. Customer Conduct and Use.
(a) Customer Data; Upload Restrictions. Customer will retain all right, title and interest in and to all data uploaded by Customer and its Users to the Platform Application that would typically be provided in the planning, execution or analysis of marketing programs, as well as all information generated by Users using of the Platform Application (collectively, “Customer Data”). Customer hereby grants to Triblio the right to host, transmit, use and/or display Customer Data in order to provide the Platform Application in accordance with this Agreement. Customer is not permitted to upload any Sensitive Information onto the Platform Application. “Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport or visa numbers, driver’s license numbers or similar personal identifiers, racial or ethnic origin, physical or mental health condition or information, birth dates, or other employment, financial or health information. Sensitive Data will not be deemed “Customer Data” hereunder. Customer will remove all Sensitive Data from the Platform Application immediately or, at its reasonable discretion, Triblio may purge the same from the Platform Application. Triblio will not access Customer Data uploaded by Customer except: (i) to respond to service or technical problems; (ii) to monitor compliance with this Agreement; (iii) if there has been a violation of this Agreement; (iv) to assess or determine whether the Platform Application is being properly implemented and configured for the service(s) purchased by Customer; (v) at Customer’s request; or (vi) upon Customer’s written consent (including by email). Triblio may also collect data with respect to Customer’s use of the Platform Application and report on such usage in an aggregated and anonymous manner.
(b) Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account, (ii) its and its Users’ use of the Platform Application and compliance with this Agreement, and (iii) all Customer Data and other data uploaded, stored or accessible by Customer or its Users via or on the Platform Application.
(c) Certain Restrictions. Customer and its Users will use the Platform Application for internal business purposes only as contemplated by this Agreement and will not:
- Tamper with the security of the Platform Application or Triblio’s other customer accounts;
- Attempt to probe, scan or test the vulnerability of the Platform Application, breach the security or authentication measures of the Platform Application without proper authorization or willfully render any part of the Platform Application unusable;
- Access data on the Platform Application not intended for the Customer or log into a server or account on the Platform Application that Customer is not authorized to access;
- Lease, distribute, (sub)license, sell or otherwise commercially exploit the Platform Application, use the Platform Application for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Platform Application (including any evaluation version) available to a third party other than as contemplated in this Agreement;
- Allow any third party that offers or provides services that are competitive with Triblio’s products or services to use or access the Platform Application, use or access the Platform Application to develop a product or service that is competitive with Triblio’s products or services or otherwise copy any ideas, features, functions or graphics of the Platform Application;
- Reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Platform Application, or modify or create a derivative work of the Platform Application or any related documentation; or
- Disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Platform Application (including benchmark tests).
(d) Communications. Customer will be responsible for the content of all communications sent using the Platform Application. Customer will not use the Platform Application to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Triblio will use commercially reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.
(e) Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Triblio’s other rights and remedies, Triblio may immediately suspend Customer’s access to the Platform Application.
(a) Scope. “Confidential Information” means all non-public information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) under this Agreement, in writing, orally, electronically, or in any other form,, that is designated, at or before the time of disclosure, in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms and conditions of the Agreement and the Platform Application (including source and object codes) are Confidential Information of Triblio. Confidential Information shall not include information the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to, and did not use any of, such Confidential Information.
(b) Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its directors, employees, consultants and professional advisers, and actual or prospective investors (collectively, “Representatives”), who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such Representatives are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use commercially reasonable measures to protect the confidentiality of such Confidential Information, such precaution not to be less than the precautions each party takes to protect the confidentiality of its own Confidential Information, and in no event shall be less than reasonable care.
(c) Exceptions. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection.
(d) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4. Fees; Interest; Taxes. Customer will pay to Triblio all of the fees specified in the Subscription Agreement, in United States currency, unless otherwise specified in the Subscription Agreement. Such fees are based on Subscriptions purchased, whether or not Customer actually utilizes the service. All payment obligations are non-cancellable. All amounts paid to Triblio are non-refundable, unless otherwise expressly set forth in this Agreement. Fees will be invoiced in advance in accordance with the terms of the Subscription Agreement. Unless otherwise stated in the Subscription Agreement, all fees are due within thirty (30) days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those Taxes based on the income of Triblio. Customer will not withhold any Taxes from any amounts due Triblio. If Triblio pays any such Taxes on behalf of Customer, Customer will promptly reimburse Triblio for such payments.
5. Proprietary Rights. Customer is permitted to access and use the Platform Application, but this Agreement is not otherwise an agreement for the sale or license of any software. Customer acknowledges that the Platform Application contains copyrighted and proprietary products and materials, certain components of which are licensed from one or more of Triblio’s licensors. Triblio and Triblio’s licensors solely and exclusively retain all right, title and interest in and to the Platform Application and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Triblio IP”). Except for the Subscription granted hereunder, Customer has no right, title or interest in or to the Triblio IP.
6. Term and Termination.
(a) Term and Termination. This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. Unless otherwise stated in the Subscription Agreement, this Agreement may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days after receipt of written notice of such breach from the non-breaching party; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately after receipt of written notice from the non-breaching party in the event of a material breach by the other party of Section 2 of these Terms; or (ii) by Triblio pursuant to Section 9(a).
(b) Outstanding Fees. Customer will pay all fees owed to Triblio that have accrued up until termination of this Agreement immediately upon such termination effective date. In addition, if Triblio terminates this Agreement pursuant to clause (i) of Section 6(a), Customer will pay Triblio, within thirty (30) days after termination, all unpaid amounts that would have been owed to Triblio for the remainder of the then-current Subscription Term absent early termination.
(c) Effect of Termination. Upon any termination of this Agreement, Customer will immediately cease all use of and access to the Platform Application and delete (or, at Triblio’s request, return) all related documentation, passwords and access codes and any other Triblio Confidential Information in its possession. Triblio will have no liability for any suspension or termination of Customer’s access to the Platform Application, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within thirty (30) days after termination, Triblio will provide Customer with temporary access to the Platform Application solely for Customer to retrieve its Customer Data, but not any other purpose. After such 30-day period, Triblio will have no obligation to maintain or provide access to such Customer Data and will thereafter, unless legally prohibited and except for archival backup purposes, delete all such Customer Data in its possession or control. Sections 3, 4, 5, 6, 7(a), 7(c), 8, 9 and 11 of these Terms will survive any termination or expiration of this Agreement.
(a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Subscription Agreement is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms).
(b) Functionality Warranty. Triblio warrants that the Platform Application will operate in substantial conformity with the then current version of the applicable documentation provided by Triblio. In the event of a breach of this warranty, Triblio shall repair the non-conformity, and if such attempts do not succeed after sixty (60) days, refund the amounts pre-paid by Customer for the non-conforming Platform Application on a pro rata basis. The preceding sentence states Customer’s sole and exclusive remedy and Triblio’s entire liability for breach of the warranty in this Section 7(b).
(c) Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 7(a) AND 7(b), (I) THE PLATFORM APPLICATION, SUBSCRIPTION AND ALL OTHER TRIBLIO PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND (II) TRIBLIO, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 7(a) AND 7(b) ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. TRIBLIO AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE PLATFORM APPLICATION WILL MEET THE CUSTOMER’S REQUIREMENTS, (B) THE OPERATION OF THE PLATFORM APPLICATION WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE PLATFORM APPLICATION CAN OR WILL BE CORRECTED, (D) THE PLATFORM APPLICATION OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF (INCLUDING ESTIMATES AND OPTIMIZATION OF THIRD PARTY ADVERTISING), WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. TRIBLIO AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.
8. Limitations of Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL TRIBLIO BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES (EXCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY THE
CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE PLATFORM APPLICATION UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION OR (II) FIVE HUNDRED THOUSAND U.S. DOLLARS (US$500,000). This Section 8 will apply to the maximum extent permitted under applicable law.
9. Mutual Indemnification.
(a) Triblio Indemnification. Triblio will indemnify, defend and hold harmless Customer against any loss, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) incurred in connection with any final judgment arising under United States law (a “Claim”) rendered against Customer finding that Customer’s use of the Platform Application, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing, if Triblio reasonably believes that Customer’s use of any portion of the Platform Application is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Triblio may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Platform Application; or (ii) replace or modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Platform Application. If, in Triblio’s opinion, (i) and (ii) above are infeasible or commercially impracticable, Triblio may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Triblio will not apply: (1) if the Platform Application is modified by any party other than Triblio, but solely to the extent the alleged infringement is caused by such modification; (2) if the Platform Application is combined with other non-Triblio products, applications, or processes not authorized by Triblio, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Platform Application; (4) to any third party deliverables or components contained within the Platform Application that are not provided by Triblio; or (5) to any action arising as a result of the Customer Data. THIS
SECTION 9(a) SETS FORTH TRIBLIO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
(b) Customer Indemnification. Customer will indemnify, defend and hold Triblio and its Affiliates, and their officers, directors, employees, agents and contractors (“Triblio Indemnitees”), harmless from and against any Losses incurred in connection with Claims against Triblio Indemnitees arising from or relating to Customer’s or its Users’ communications with its actual and potential customers (including but not limited to advertisements), use of Customer Data or use of the Platform Application that is not consistent with the terms of this Agreement, in each case except to the extent Triblio is obligated to indemnify Customer under Section 9(a).
(c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim; provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability, and may not enter into any settlement agreement that adversely affects the aggrieved party without the aggrieved party’s prior written consent; and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim. Indemnifier may, at its sole expense, actively participate in any suit or proceeding, through its own counsel.
10. Data Privacy and Security.
(b) Security. Triblio has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Platform Application at reputable third party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Data will be maintained accurately and safeguarded including the use of technical and physical controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Triblio.
(d) CCPA Service Provider Terms. To the extent that Customer is subject to the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq., (“CCPA”) the parties agree that Customer is a “Business” under the CCPA and Triblio is a “Service Provider” that (a) provides the Subscription services to Customer pursuant to this Agreement and (b) Processes, on behalf of Customer, Personal Information that is necessary to perform the Services under this Agreement. The parties further agree and covenant as follows:
(1) Triblio is acting solely as a Service Provider with respect to Personal Information.
(2) Triblio shall not Sell Personal Information.
(3) Triblio shall not retain, use or disclose Personal Information (i) for any purpose other than for the specific purpose of performing the Services, or (ii) outside of the direct business relationship between Customer and Triblio.
(4) Triblio shall cooperate with Customer if a Consumer requests (i) access to his or her Personal Information, (ii) information about the categories of sources from which the Personal Information is collected, or (iii) information about the categories or specific pieces of the Personal Information, including by providing the requested information in a portable and, to the extent technically feasible, readily useable format that allows the Consumer to transmit the information to another entity without hindrance. Triblio shall promptly inform Customer in writing of any requests with respect to Personal Information.
(5) Upon Customer’s written request, Triblio shall promptly delete a particular Consumer’s Personal Information from Triblio’s records. In the event Triblio is unable to delete the Personal Information for reasons permitted under the CCPA Triblio shall (i) promptly inform Customer of the reason(s) for its refusal of the deletion request, (ii) ensure no further retention, use or disclosure of such Personal Information except as may be necessitated by the reason(s) for Triblio’s refusal of the deletion request and as disclosed to Customer, (iii) take commercially reasonable steps to ensure the privacy, confidentiality and security of such Personal Information pursuant to this Agreement, and (iv) delete such Personal Information promptly after the reason(s) for Triblio’s refusal has expired.
(6) For the purposes of this Section 10(d) only, the following definitions shall apply:
“Consumer” means an identified or identifiable natural person who is a resident of the United States, including without limitation an identified or identifiable natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations.
“Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or household, that may be (i) disclosed or otherwise made available at any time to Triblio by Customer in anticipation of, in connection with or incidental to the performance of the Services; or (ii) Processed at any time by Triblio in connection with or incidental to the performance of the Agreement.
“Processes” / “Processing” means any operation or set of operations that are performed on personal data or on sets of Personal Information, whether or not by automated means.
“Sell” shall have the meaning ascribed to it in the CCPA.
11. General Provisions.
(a) Entire Agreement; Interpretation. This Agreement (which consists of the Subscription Agreement and these Terms) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Platform Application described in the Subscription Agreement, and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of these Terms and the Subscription Agreement, the terms of the Subscription Agreement will govern. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Triblio ordering document, and no terms included in any Customer purchase order or other non-Triblio ordering document will apply to the Customer’s Subscription or use of the Platform Application. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, “including” means “including without limitation”.
(b) Marketing. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
(c) Relationship of Customer and Triblio. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
(d) Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
(e) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party. Notwithstanding the forgoing, either party may assign or transfer this Agreement to an Affiliate or in connection with a change of control event, merger, acquisition, sale of substantially all of its assets, or by operation of law provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
(f) Solicitation. During the Subscription Term and for a period of one (1) year following the termination or expiration of this Agreement, neither party shall employ, offer employment to or solicit the employment of any individual employee or independent contractor employed or engaged by such other party who has been directly involved in providing or receiving services under this Agreement without the prior written consent of such other party, provided that the foregoing shall not apply with respect to responses to general, nontargeted job placement postings or advertisements.
(g) Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Fairfax County and the federal courts in the City of Alexandria in the Commonwealth of Virginia, USA. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
(h) Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Triblio will be sent to the address for Triblio set forth in the Subscription Agreement and addressed to the General Counsel. Notices to Customer will be sent to the address for Customer set forth in the Subscription Agreement and addressed to Customer’s signatory unless otherwise designated by Customer.
(i) Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
(j) Facsimile Transmission/Counterparts/Electronic Signatures. This Agreement will be deemed executed upon mutual execution of the Subscription Agreement, which may be executed and delivered by facsimile or email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
(k) Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances. Notwithstanding the foregoing, a party’s payment obligations may not be delayed due to Force Majeure.
(l) Subcontractors. Triblio may use the services of subcontractors for the provision of any Platform Application and performance of any services under this Agreement; provided, however, Triblio will be responsible for each subcontractor’s performance of services under this Agreement and for each subcontractor’s compliance with the terms and conditions of this Agreement.
(m) Attorney Fees. In the event of any dispute arising under Section 4 of this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
SERVICE LEVEL AGREEMENT (SLA)
1. Platform Application Availability
The Triblio Platform Application will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below.
Category 1 –Scheduled Maintenance
Triblio has the right to execute a scheduled maintenance at any time during the week provided Triblio notifies Customer via email at least two (2) days in advance.
Category 2 – Unscheduled Maintenance
Unscheduled maintenance may be required to resolve issues that are critical for Customer and/or performance of the Platform Application. Triblio will notify Customer via email at least four (4) hours prior to the unscheduled maintenance. The unscheduled maintenance will last no more than one (1) hour in duration.
2. Product Support
Triblio’s Product Support Team provides Standard Support from 8:00 AM ET to 8:00 PM ET Monday through Friday excepting public holidays.