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TERMS OF SERVICE

Terms of Service

 

This Terms of Service (the “Terms of Service”) is between Triib, Inc. (“Triib“) and the Party identified in the Triib Subscription Confirmation Email (here after “Order Form”)(the “Customer”) executed by Triib and the Customer that references these Terms of Service, and shall be effective with respect to each Order Form as of the latest date set forth in the Order Form (the “Effective Date”). Each Order Form, the Triib Privacy Policy (https://www.triib.com/privacy), the Terms of Use (https://www.triib.com/terms), and these Terms of Service (including its Exhibits and their Attachments), and the Data Processing Addendum (https://www.triib.com/dpa) are referred to as the “Agreement” and shall govern the relationship between the Parties relating to the Triib Services expressly identified in the applicable Order Form. Each of Triib and Customer are referred to sometimes herein separately as a “Party” and are collectively referred to herein together as the “Parties”. No other terms or conditions, including terms or conditions contained in any purchase order later exchanged between the Parties as a mechanism for processing and approving payments, shall govern the relationship between the Parties.

 

Further, by agreeing to these Terms of Service, you are also agreeing to be bound by our Terms of Use as stated here: https://www.triib.com/terms.

 

  1. DEFINITIONS

Capitalized terms shall have the meanings set forth below in this Section 1 or elsewhere in this Terms of Service

  1.  “Customer” 
    • means any person, business, or entity that subscribes to (or otherwise accesses or uses) the Triib Services via an Order Form.  Customers have a direct business relationship with Triib.
  2.  “User”
    •  means any individual who interacts with the Triib Services, including Triib mobile applications, and individuals who book appointments or classes, purchase services, and otherwise interact with the Triib  Services as a result of Customer’s subscription or access to, or use of, the Triib Services.  Customers and their representatives are also Users.
  3.  “User Data” 
    • means any information about an identified or identifiable natural person that a Customer or User provides while using the Triib Services.
  4. “Card” 
    • means a credit and/or a debt payment instrument provided by Visa, MasterCard or any other payment services organization.
  5. “Confidential Information” 
    • means any non-public material or information relating to a Party which it discloses or makes available to the other Party under this Agreement, including, by way of example, research, strategies, inventions, processes, formulas, technologies, designs, drawings, finances, or other non-public information or trade secrets that such disclosing Party treats as proprietary or confidential. For clarification but not imitation, the Triib Services, software and any databases of Triib (including any data models and data contained therein that are not specific to Customer) shall constitute Confidential Information of Triib.
  6. “Customer Materials” 
    • means all Customer information, Customer-owned User Data, and other intellectual property and work product, computer systems, network access and other resources of Customer or its suppliers required by Triib for the performance of the Triib Services.
  7. “Payment Service Provider” 
    • means a third-party organization, association, or financial institution that enables processing of Card payment transactions, or other direct debit electronic fund transfer transactions.
  8. “Triib Services” 
    • means all websites hosted on the Triib platform, related web sites, downloadable software, social media pages, email systems and messages, mobile applications (including tablet applications), and other services provided by Us, and all other written and oral communications between Triib and our Customers and Users. 
  9. “Order Form” 
    • means Triib’s standard purchase Order Form, that sets forth the Triib Services, any restrictions on such use and/or any other relevant information relating to the Triib Services, including the term and fees. 

 

 

  1. FEES AND PAYMENTS
  1. Fees: 
    1. Customer agrees to pay the amounts specified in each Order Form via electronic method approved and scheduled by Triib, Inc.  Payments commence 30 days after submitting the Order Form.
  2. Disputed Charges: 
    1. Customer will notify Triib in writing of any dispute with invoiced charges promptly after receipt of the applicable invoice. If Customer disputes any charge or funding, Customer must notify Triib within sixty (60) days of the date of the statement where the charge or funding appears. If Customer disputes any charge or funding, Customer must pay the disputed amount in full and immediately notify Triib of the disputed amount and the reason for the dispute. Customer agrees that Customer and Triib will then work together to resolve the disputed amount. If Triib, in its sole discretion, agrees with Customer’s position on the disputed amount, Triib will credit the disputed amount to Customer on the next periodic statement. If Triib, in its sole discretion, does not agree with Customer’s position on the dispute, Customer may terminate this agreement under the conditions of Section 11, “Term and Termination”.
  3. Taxes: 
    1. All amounts payable under this Agreement exclude all applicable sales, use and other taxes (other than taxes based on Triib’s net income) and all applicable export and import fees, customs duties and similar charges. Customer is responsible for payment of all such taxes (other than taxes based on Triib’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of Triib Services. Customer will make all payments required hereunder to Triib free and clear of, and without reduction for, any withholding taxes.

 

  1. ACCESS AND USE
  1. License to Use: 
    1. Triib hereby grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable license during the term of the applicable Order Form to access and to use the Triib Services identified in such Order Form pursuant to and in accordance with this Agreement.
  2. Access and Use: 
    1. Customer may permit Users to access and use the features and functions of the Triib Services in accordance with this Agreement.
  3. Responsibility for Hosting: 
    1. Triib will, at its own expense, provide for the hosting of the Triib Services, with the understanding that Triib will not be required to bear any responsibility for any telecommunications and/or network expenses required by Customer to access the Triib Services through the Internet. Customer shall be responsible for and assumes the risk, responsibility and expense of acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Users to access and use the Triib Services. Triib will use commercially reasonable efforts to provide the Triib Service.
  4. Usage Restrictions: 
    1. Customer and its Users will not: (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Triib Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (b) create any derivative product from any of the Triib Services; or (c) allow third parties to gain access to the Triib Services, except that Users are permitted to access certain Triib Services in accordance with this Agreement. Customer will ensure that its use and that of is Users of the Triib Services complies with all applicable laws, statutes, regulations or rules.

 

  1. SUPPORT AND TRAINING
  1. Support and Technical Assistance: 
    1. Triib will provide email technical support to Customer personnel during its normal business hours (8 AM ET to 6 PM ET) in accordance with Triib’s then-standard support policies premium support and/or training obligations may be set forth in an Order Form for an additional fee. Triib will have no obligation to provide any support directly to any User, and Triib may refer all Users directly to Customer for support. Customer can designate up to two (2) persons per location, which designees will be eligible to receive technical support from Triib (“Eligible Support Recipients”). Such designees may be changed by Customer at any time by written notice to Triib. Except for such Eligible Support Recipients, Customer will be solely responsible for the support of all Users accessing the Triib Services.
  2. Training: 
    1. New Customers may receive up to 3 hours of training.  Customer may request Triib to provide additional training services related to the Triib Services. Until the Customer has ordered training services pursuant to an Order Form, Triib will have no obligation to provide training services to Customer beyond the initial 3 hours.

 

  1. CONFIDENTIALITY
  1. Ownership of Confidential Information: 
    1. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential (collectively, the “Other Party’s Confidential Information”). Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and shall remain the sole property of the disclosing Party or such third party.
  2. Mutual Confidentiality Obligations: 
    1. Each Party agrees: (i) to use the Other Party’s Confidential Information only for the provision and use of the Triib Services or as otherwise approved in writing by the disclosing Party; (ii) not to reproduce the Other Party’s Confidential Information (excluding digital copies maintained in accordance with archiving practices) and to hold in confidence and protect the Other Party’s Confidential Information from dissemination to, and use by, any third party; (iii) except as required in the performance of a Party’s obligations under this Agreement, to not create any derivative work from the Other Party’s Confidential Information; (iv) to restrict access to the Other Party’s Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to not use or disclose such Confidential Information in at least as restrictive a manner as provided in the terms of this Agreement; and (v) to return or destroy all of the Other Party’s Confidential Information in its possession upon termination or expiration of this Agreement (excluding any Confidential Information retained as digital copies in accordance with archiving practices for use solely for archival purposes).
  3. Confidentiality Exceptions: 
    1. The obligations in Section 2 shall not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) later becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved in writing for use or disclosure by the disclosing Party without restriction.  Notwithstanding the obligations in Section 5.2, a Party shall be permitted to disclose Confidential Information to the limited extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

 

  1. CERTAIN CUSTOMER RIGHTS AND OBLIGATIONS
  1. Customer Materials: 
    1. Certain Customer Materials may be required for the proper operation of the Triib Services. Customer shall make available in a timely manner at no charge to Triib all Customer Materials required by Triib for the performance of the Triib Services. Customer shall be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all Customer Materials. Customer will, at its own expense, obtain all third-party consents and/or permissions that may be necessary and appropriate for Triib’s use and display of the Customer Materials in accordance with this Agreement. Customer acknowledges and agrees that the timely performance by Triib of the Triib Services is dependent upon Customer performing its obligations under this Agreement, and that any delay or failure to perform by Customer may extend the time for Triib to perform its obligations under this Agreement.
  2. Access to Services: 
    1. Customer: (a) will provide to Triib information and other assistance as necessary to enable Triib to establish usernames to be used by Users; (b) is responsible for maintaining the confidentiality of all Users’ usernames and passwords; (c) is solely responsible for all activities that occur under these usernames; (d) agrees not to allow a third party to use its account, usernames or passwords at any time; and (e) agrees to notify Triib promptly of any actual or suspected unauthorized use of its account, User usernames or passwords, or any other breach or suspected breach of this Agreement. Triib reserves the right to terminate any username and/or password that Triib reasonably determines may be suspect. Customer acknowledges and agrees that, as between Customer and Triib, Customer will be responsible for all acts and omissions of Users, and any act or omission by such Users which, if undertaken by Customer, would constitute a breach of this Agreement, will be deemed a breach of this Agreement by Customer.
  3. Service Rules: 
    1. Customer will use the Triib Services only as contemplated by this Agreement and in compliance with all applicable laws and will not, nor will Customer authorize any User to, use the Triib Services to: (a) send any form of duplicative and unsolicited messages, other than marketing and promotional messages to Users and prospective Users as contemplated by the Triib Service; (b) harvest, collect, gather or assemble information or data regarding other users without their consent; (c) transmit through or post on the Triib Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (d) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (e) interfere with or disrupt the integrity or performance of the Triib Services or the data contained therein; (f) attempt to gain unauthorized access to the Triib Services, computer systems or networks related to the Triib Services; or (g) interfere with another User’s use and enjoyment of the Triib Services.
  4. Consent to Contact: 
    1. Customer is solely liable for ensuring that its Users have provided their express written consent to receiving communications about their payments and transactions, whether by phone, SMS text, or email. This applies to all forms of communications, whether informational or promotional in nature, and whether made through the use of an autodialing service. Customer expressly agrees to indemnify and hold Triib, or any of its subsidiaries or affiliates, harmless against any liability resulting from Customer’s violation of state, federal or foreign laws, including those laws governing communications with Users or prospective customers.

 

  1. OWNERSHIP AND PROPRIETARY RIGHTS
  1. Customer Materials: 
    1. Customer retains all right, title and interest in and to the Customer Materials, and Triib acknowledges that it neither owns nor acquires any rights in and to the Customer Materials not expressly granted by this Agreement. Customer hereby grants to Triib a limited, non-exclusive right and license to: (a) use any Customer Materials during the term of this Agreement for the limited purposes of performing Triib’s obligations and providing the Triib Services under this Agreement; and (b) on a perpetual basis, to use, copy, display, disclose, modify and distribute the Customer Materials as is decided by Triib.
  2. Triib: 
    1. Customer acknowledges that Triib and its licensors own all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”), in and to the Triib Services (including all components thereof) and any other work product, developments, inventions, technology or materials provided under this Agreement. Triib expressly reserves all rights not expressly granted to Customer in this Agreement. Customer shall not engage in any act or omission that would impair Triib’s and/or its licensors’ Intellectual Property Rights in the Triib Services, and any other work product, developments, inventions, technology or materials provided under this Agreement.
  3. Trademark License: 
    1. Subject to the terms of this Agreement, each Party (“Licensor”) grants the other Party (“Licensee”) a limited, non-exclusive, non-transferable, royalty-free right and license to use, display and perform the Licensor’s trade name and logo and trademarks or service marks (collectively, “Marks”), solely for the purpose of the Licensee fulfilling its obligations or exercising its rights hereunder. Licensee will use Licensor’s Marks in conformance with any trademark usage policy Licensor may communicate to Licensee in writing from time to time in advance. Licensee’s use of Licensor’s Marks will be subject to Licensor’s quality control procedures. Licensee will not use Licensor’s Marks in a manner that Licensor reasonably believes dilutes, tarnishes or blurs the value of Licensor’s Marks. Licensee acknowledges that Licensee’s use of Licensor’s Marks will not create in Licensee, nor will Licensee represent it has, any right, title or interest in or to Licensor’s Marks other than the license granted by Licensor above. Licensee will not challenge the validity of or attempt to register any of Licensor’s Marks, nor will it adopt any derivative or confusingly similar names, brands or marks or create any combination marks with Licensor’s Marks. Licensee acknowledges Licensor’s ownership and exclusive right to use Licensor’s Marks and agrees that all goodwill arising as a result of Licensee’s use of Licensor’s Marks will inure solely to the benefit of Licensor.
  4. Feedback: 
    1. Triib in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Customer or its personnel or Users to Triib in connection with their use or access of any Triib Services (all such reports, comments and suggestions, collectively, “Feedback”). Customer hereby grants Triib a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Triib’s products and services, including the Triib Services.

 

  1. WARRANTIES
  1. Mutual: 
    1. Each Party represents and warrants to the other that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.
  2. Triib Warranties: 
    1. Triib represents and warrants that its provision of the Triib Services will comply in all material respects with all applicable state and federal laws, rules and regulations.
  3. Customer Warranties: 
    1. Customer represents and warrants that: (a) it will, at its own expense, obtain sufficient rights and all third party consents and/or permissions that may be necessary and appropriate to permit Triib’s access to and use of the Customer Materials and to provide to Customer the Triib Services; (b) its provision of the Customer Materials hereunder will comply with all applicable state and federal laws, rules and regulations and not violate any person’s right of privacy or publicity; and (c) Customer will promptly communicate to Triib any User opt-outs or requests related to Triib’s provision of the Triib Services.
  4. No Other Warranties: 
    1. THE TRIIB SERVICES, AND ANY OTHER MATERIALS, SOFTWARE, DATA AND/OR SERVICES PROVIDED BY TRIIB ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND TRIIB EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO WARRANTY IS MADE BY TRIIB ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. TRIIB DOES NOT WARRANT THAT THE TRIIB APPLICATION OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER AGREES THAT TRIIB’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CUSTOMER ONLY. TRIIB’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. TRIIB IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

  1. LIMITATION OF LIABILITY
  1. LIMITATIONS: IN NO EVENT SHALL TRIIB BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF TRIIB TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES (E.G., EXCLUDING ANY TRANSACTIONAL AND INTERCHANGE FEES) PAID TO TRIIB BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT ANY LIABILITY MAY NOT BE SO EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
  2. Essential Basis: The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including the economic terms, would be substantially different.

 

  1. INDEMNIFICATION
  1. By Triib: 
    1. Triib shall defend, indemnify, and hold Customer harmless against all third-party costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities to the extent arising out of any third-party claim that the Triib Services infringe any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States. Notwithstanding the foregoing, Triib shall have no obligation or liability to the extent that the alleged infringement arises from a Customer Indemnity Responsibility (as is hereinafter defined). Upon the occurrence of a claim for which indemnity is or may be due under this Section 10.1, or in the event that Triib believes that such a claim is likely, Triib may, at its option: (a) modify the Triib Services so that it becomes non-infringing, or substitute functionally equivalent software or services; (b) procure the rights to use such infringing component(s); or (c) terminate this Agreement on written notice to Customer and refund to Customer any prepaid but unused fees. The obligations set forth in this Section 10.1 shall constitute Triib’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
  2. Indemnification by Customer: 
    1. Customer shall indemnify, hold harmless, and, at Triib’s option, defend Triib from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any third-party claim arising from or relating to: (a) Customer’s breach of this Agreement; (b) the Customer Materials; (c) Customer’s use of the Triib Services in breach of this Agreement or other than as specified in any Triib written documentation; (d) any Users of Customer; (e) modification of the Triib Services by any person other than Triib or its authorized agents; or (f) Customer’s breach of any agreement with its Payment Service Provider (circumstances under clauses (a) through (f), each, a, “Customer Indemnity Responsibility”).
  3. Procedures: 
    1. The indemnification obligations set forth above shall not apply to the extent the indemnified party: (i) does not promptly notify the indemnifying party of any claim which may be subject to an indemnification obligation; (ii) except as provided in Section 10.2, does not grant the indemnifying party sole control over the defense and/or settlement of any such claim; or (iii) does not assist the indemnifying party as reasonably requested. Notwithstanding the foregoing, the indemnifying party shall not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto without payment of any consideration other than by the indemnifying party or unless the indemnified party provides its prior written consent to such settlement.

 

  1. TERM AND TERMINATION
  1. Agreement: 
    1. This Agreement shall become effective upon the Effective Date and shall continue for the length of time in which any Order Forms hereunder remain in effect, unless or until terminated pursuant to Section 11.2, 11.3, or 11.4. 
  2. Termination for Breach: 
    1. Either Party may terminate this Agreement immediately upon written notice to the other Party in the event that the other Party materially breaches this Agreement and fails to cure such breach within 30 days written notice thereof.
  3. Termination Upon Bankruptcy, Insolvency, Etc: 
    1. Either Party may terminate this Agreement immediately upon written notice to the other Party after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such other Party which proceeding or petition has not been dismissed, vacated, or stayed within thirty (30) days after it was first filed.
  4. Termination at Will: 
    1. Both Triib and Customer may terminate this agreement at will, provided they have given the other party a minimum of 30 days written notice.  Written notice may be delivered via email to support@triib.com or the email address of the Customer provided in the Order Form.  Customer acknowledges that any payments that come due between the notice date and the termination date (at least 30 days more) will be paid by the customer and no refunds will be given for amounts due.
  5. Suspension of Service: 
    1. If Customer fails to pay any amount invoiced after receipt of a second notice (i.e., the first notice following the invoice for such amount) of such amount being due and payable, Triib may suspend the Triib Services to Customer, in addition to any of its other rights or remedies, without liability to Customer until such amounts are paid in full. If necessary to protect the security of the Triib Services or one or more of its customers (including Customer), Triib may immediately suspend the Triib Services to Customer, without liability to Customer, until such threat to the security of the Triib Services or to one or more of its customers (including Customer) is resolved.
  6. Effect of Termination: 
    1. Upon any termination of this Agreement, each Party shall: (i) immediately discontinue all use of the other Party’s Confidential Information; and (ii) shall promptly pay all amounts due and remaining payable hereunder.  
  7. Survival of Obligations: 
    1. The provisions of Sections 2, 6, 7, 9, 10, 11, 12, as well as any other terms that by their nature should survive, shall survive termination or expiration of this Agreement.

 

  1. DISPUTE RESOLUTION AND ARBITRATION
  1. Disputes: 
    1. In the event of any controversy, dispute or claim between Triib and Customer arising out of or related to this Agreement (including, but not limited to, claims relating to breach, termination, fraud or misrepresentation, or the invalidity, illegality or voidness of this Agreement) whether based on contract, tort, statute or other legal theory (collectively referred to hereinafter as “disputes”), the Parties shall follow the dispute resolution procedures set forth in this Section 12.
  2. Internal Discussions: 
    1. The Parties shall first attempt to resolve a dispute, at the written request of either Party, through discussions between an authorized senior management representative of Triib and an authorized senior management representative of Customer. Except as otherwise expressly provided in this Section 12, the good faith pursuit of the foregoing discussions is a condition precedent to the commencement of any mediation or arbitration or other legal proceedings hereunder.
  3. Mediation: 
    1. If a dispute is not resolved by discussions in accordance with Section 12.2 within ten (10) business days after the request, the Parties agree, at the written request of either Party, to submit the dispute to a mutually agreed-upon neutral sole mediator selected by the Parties. Except as otherwise expressly provided in this Section 12, the good faith pursuit of the foregoing mediation procedure is a condition precedent to the commencement of any arbitration or other legal proceedings hereunder.
  4. Arbitration: 
    1. If the dispute is not resolved by mediation in accordance with Section 12.3 within thirty (30) days after the request, the dispute shall be submitted to binding arbitration before a single arbitrator from the American Arbitration Association who is familiar with the Parties’ respective industries and specializes in contractual matters.  Any award made hereunder shall be made within four (4) months of the appointment of the arbitrator and may be entered in any court of competent jurisdiction. The arbitrator shall determine issues of arbitrability but may not limit, expand or otherwise modify the terms of this agreement. Issues of arbitrability shall be determined in accordance with the federal substantive and procedural laws relating to arbitration.
  5. Excluded Claims: 
    1. The dispute resolution proceedings of this Section 12 shall not apply to the following “Excluded Claims”: (i) any action or proceeding that may be commenced by any third party against either Party in connection with this Agreement, (ii) a Party’s breach of its confidentiality obligations under Section 5, (iii) disputes arising out of, or relating to infringement of the intellectual property rights of a Party or (iv) any claim seeking emergency injunctive relief based on exigent circumstances, including without limitation imminent danger, or commission, of a crime, hacking, cyber-attack or security breach).  The Parties agree to submit Excluded Claims to the exclusive jurisdiction of the state and federal courts located within Suffolk County within the Commonwealth of Massachusetts.  This Section shall not prevent the Parties from using alternative dispute resolution proceedings for Excluded Claims if the Parties mutually agree to do so.
  6. Expenses: 
    1. Each Party shall bear its own attorneys’ fees and other costs and expenses, except that the fees and costs related to the compensation and expenses of the mediator and/or the arbitrator shall be shared equally between the Parties. If court proceedings to stay litigation or compel arbitration are instituted, the Party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney’s fees which are reasonably incurred by the other Party.
  7. Miscellaneous: 
    1. The requirement for mediation and arbitration in accordance with this Section 12 shall not be deemed a waiver of any right of termination under this Agreement, and the arbitrator is not empowered to act or make any award other than based solely on the rights and obligations of the parties prior to any such termination. The arbitrator shall not have authority to award punitive or other damages in excess of compensatory damages and each Party irrevocably waives any claim thereto. The exclusive mediation/arbitration dispute resolution procedure provided above shall not be applicable to requests for equitable relief, and request by a Party to a court for interim measures or equitable relief shall not be deemed a waiver of the obligation to mediate or arbitrate. The place of mediation or arbitration shall be the Boston, Massachusetts metropolitan area. Except to the extent required by law, the parties, their representatives, other participants and the mediator and arbitrator shall hold the existence, content and result of mediation and arbitration in confidence.

 

  1. MISCELLANEOUS
  1. Entire Agreement: 
    1. This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
  2. Applicable Law: 
    1. This agreement and the rights and obligations of the Parties hereunder shall be construed in accordance with, and shall be governed by, the laws of the Commonwealth of Massachusetts, without giving effect to its rules regarding conflicts of laws. Each Party agrees that any and all causes of action (other than the enforcement of judgments) between the Parties arising from or in relation to this agreement shall be brought exclusively in the state and federal courts located in Massachusetts.
  3. Continuous Development: 
    1. The Parties acknowledge and agree that Triib may continually develop, deliver and provide to Customer ongoing innovation to the Triib Services in the form of new features, functionality, capabilities and services. Triib reserves the right to modify the Triib Services from time to time. Some modifications may be provided to Customer at no additional charge. In the event Triib adds additional functionality to the Triib Services, Triib may condition Customer’s receipt of such functionality on Customer’s payment of additional fees, provided Customer may elect to continue to use the version of the Triib Services that Triib makes generally available (without such features) without paying additional fees. If any modification materially and adversely affects the functionality of the Triib Services, Customer may provide written notice to Triib within thirty (30) days of such change and, if Triib is unable to provide substantially the same functionality to Customer in the Triib Services within thirty (30) days of Triib receiving such notice, Customer may terminate this Agreement as its sole and exclusive remedy for such modification.
  4. Force Majeure: 
    1. Triib will be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Triib. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
  5. Notices: 
    1. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties to the Agreement at the addresses set forth on the Order Form. Such notices will be effective on the date indicated in such confirmation. Notices of any change of address by one Party must be sent to the other Party five (5) days before such change of address takes effect.
  6. Assignments: 
    1. Customer may not assign its rights or delegate its obligations under this Agreement without Triib’s prior written consent, and, absent such consent, any purported assignment or delegation by Customer will be null, void and of no effect. This Agreement will be binding upon and inure to the benefit of Triib and Customer and their successors and permitted assigns. Triib may assign this Agreement and its rights and obligations hereunder to any party at any time without any notice to Customer.
  7. Independent Contractors: 
    1. The Parties acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement. No amendment to this Agreement will be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties. The effective date of any amendment shall be the date upon which Triib executes the amendment.
  8. Amendment: 
    1. No amendment to this Agreement will be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties. The effective date of any amendment shall be the date upon which Triib executes the amendment.
  9. Waiver: 
    1. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
  10. Severability: 
    1. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
  11. Causes of Action: 
    1. No action arising from or related to this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the date such amount was due.
  12. No Third-Party Beneficiaries: 
    1. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
  13. Counterparts; Headings: 
    1. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
  14. Publicity: 
    1. Triib may publicly refer to Customer, including on Triib’s website and in sales presentations, as a Triib customer and may use Customer’s logo for such purposes. Similarly, Customer may publicly refer to itself as a customer of Triib, including on Customer’s website and in sales presentations.