Hardware Purchase & Subscription Agreement
LAST UPDATED: October 1, 2019
IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS TRYM SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”). BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, OR PROCEEDING WITH THE INSTALLATION OF ANY HARDWARE PURCHASED HEREUNDER AND/OR INSTALLING AND/OR ACCESSING OR USE ANY TRYM MOBILE APPLICATION SOFTWARE AND/OR TRYM’S ONLINE WEB PLATFORM (COLLECTIVELY, THE “SOFTWARE”), OR USING THE TRYM SYSTEM (AS DEFINED BELOW), OR ANY PART THEREOF, AS AN AUTHORIZED REPRESENTATIVE OF THE ENTITY NAMED ON THE APPLICABLE ORDER FORM (“SUBSCRIBER”) ON WHOSE BEHALF YOU ACCESS AND/OR USE THE TRYM SYSTEM, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH TRYM, INC., A DELAWARE CORPORATION (“TRYM”), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE TRYM SYSTEM (OR ANY PART THEREOF).
1.1 “Authorized Users” means employees or contractors of Subscriber who are authorized to use the Trym System, solely for Subscriber’s internal business purposes, subject to the applicable Usage Parameters, and otherwise in compliance with this Agreement.
1.2 “Confidential Information” means all non-public information that the party disclosing the information designates at the time of disclosure as being confidential, or if disclosed orally or visually is identified as such prior to disclosure and summarized, in writing, by the disclosing party to the receiving party within thirty (30) days, or which, under the circumstances surrounding disclosure, the receiving party knows or has reason to know should be treated as confidential without the need to be marked as “confidential”, including, without limitation, the terms and conditions of this Agreement, and information regarding either party’s financial condition, business opportunities, plans for development of future Firmware or Software or new versions of existing Firmware or Software, know-how, technology or customers.
1.3 “Documentation” means the written or electronic user manuals and documentation for the Software and/or Firmware made available by Trym to Subscriber hereunder.
1.4 “Firmware” means Trym’s proprietary computer software programs installed on or embedded in the Hardware provided hereunder, in machine readable form only.
1.5 “Hardware” means the hardware set forth in an Order Form that is purchased by Subscriber hereunder or that is owned by Subscriber and, in each case, is configured by Trym for use with the Software in connection with a Subscription.
1.6 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including, but not limited to, rights in audio visual works and moral rights), trade secret rights, moral rights, rights of priority and any other intellectual property right recognized in any country or jurisdiction in the world.
1.7 “Order Form” means an order form entered into between Subscriber and Trym for Subscriber’s purchase of the Hardware and/or Subscription or other services from Trym.
1.8 “Software” means the Trym App and Trym Platform.
1.9 “Subscription” means a subscription license purchased by Subscriber to access and use the Trym System and receive Support during the applicable Subscription Term, as further specified on the applicable Order Form.
1.10 “Subscription Term” means the subscription term for Subscriber’s access and use of the Trym System set forth on the applicable Order Form.
1.11 “Support” has the meaning given to such term in Section 4.
1.12 “Trym App” means Trym’s proprietary iOS and Android software mobile applications that can be used to control and operate the Hardware, in machine readable form only, and any and all modified, updated, or enhanced versions thereof, that Trym may provide to Subscriber or its Authorized Users under this Agreement.
1.13 “Trym Platform” means Trym’s proprietary online software platform, and any and all modified, updated, or enhanced versions thereof, that Trym may provide to Subscriber or its Authorized Users under this Agreement.
1.14 “Trym System” means the Hardware, the Firmware, and/or the Software specified on the applicable Order Form that Trym provides to Subscriber under this Agreement.
1.15 “Usage Parameters” means the maximum number of rooms or facilities that Subscriber may use with the Trym System as specified on the applicable Order Form, the number of Authorized Users, and any other parameters specified in the Documentation, Order Form, or in writing by Trym regarding the scope of use of the Trym System by Subscriber or its Authorized Users.
2. Orders; Hardware; Shipment; Installation
2.1 Orders. The Hardware, and/or subscription licenses to access and use the Trym System and/or any Professional Services purchased by Subscriber from Trym hereunder will be specified in one or more order forms which are executed by the parties pursuant to this Agreement (each, an “Order Form”). Each Order Form will be governed by the terms of this Agreement and the term “Agreement” herein, includes the terms of this Agreement and all Order Forms executed pursuant to this Agreement. The terms on any purchase order, confirmation, or similar document submitted by Subscriber to Trym are deemed void and of no effect unless the additional terms are agreed upon by the parties in writing prior to acceptance of the Order Form. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form.
2.2 Hardware Delivery Change or Cancellation. Subject to Trym’s prior written approval, Subscriber may reschedule a shipment of the Hardware purchased in an Order Form if Subscriber provides written notification to Trym at least thirty (30) days prior to the scheduled ship date; provided, however, that the requested rescheduling date does not fall outside of Trym’s current fiscal quarter. Subscriber may not cancel shipment of the Hardware purchased in an Order Form without the prior written approval of Trym. Trym reserves the right to cancel any Order Forms placed by Subscriber and accepted by Trym as set forth above, or to refuse or delay shipment thereof, if Subscriber (a) fails to make any payment as provided in this Agreement or under the terms of payment set forth in any invoice or otherwise agreed to by Trym and Subscriber, or (b) otherwise fails to comply with the terms and conditions of this Agreement. No such cancellation, refusal or delay will be deemed a termination (unless Trym so advises Subscriber) or breach of this Agreement by Trym.
2.3 Shipment; Delivery; Title & Risk of Loss; Utilities. Subscriber agrees that delivery of the Hardware shall be made F.O.B. shipping point (i.e., Trym’s designated shipping facility). Delivery dates and Hardware availability as set forth in the Order Form or as otherwise communicated to the Subscriber are estimates only. Trym will make reasonable efforts to deliver in accordance with these dates; however, Trym will not be liable for failure to deliver as estimated. The Hardware may be delivered by Trym in advance of the quoted delivery date by giving reasonable notice to the Subscriber. Trym may deliver the Hardware in separate installments. Subscriber will, at Subscriber’s sole cost, furnish or procure all utilities necessary for the operation of the Trym System. Trym will not be liable for any loss, injury or damage resulting from any interruption or failure of utilities due to any cause whatsoever.
2.4 Installation and Implementation Services. If Subscriber has purchased Hardware hereunder, Trym (or its authorized contractor) will use commercially reasonable efforts to complete installation of the Hardware units at Subscriber’s facilities by the installation dates set forth on the applicable Order Form for such Hardware. In addition, subject to the terms and conditions of this Agreement (including the payment of applicable fees), Trym will provide Subscriber the implementation, configuration and other professional services specified in an Order Form (collectively, the “Professional Services” which, for the avoidance of doubt, excludes Support). The scope, timeline and tasks of the parties with respect to the Professional Services shall be as specified in the Order Form. Unless otherwise set forth in the Order Form for Professional Services, the fees for such Professional Services shall be based on Trym’s then-current rates for such Professional Services.
3. Access and Use of the Trym System
3.1 License Grant. Subject to the terms and conditions of this Agreement (including payment of applicable fees), Trym hereby grants to Subscriber a limited, non-transferable, non-exclusive license to: (a) permit Authorized Users to (i) install, execute and use the Trym App, in object code only, on such Authorized Users’ mobile devices, and (ii) access and use the Trym Platform, in object code only, over the internet, in each case, solely for accessing, monitoring and controlling the Hardware installed at Subscriber’s facilities and in accordance with any Usage Parameters; (b) execute and use the Firmware solely to the extent included or embedded (as and if applicable) in the Hardware in connection with Subscriber’s use of the Hardware; and (c) reproduce and use a reasonable number of copies of the applicable Documentation in support of the exercise of the licenses granted in clause (a) and (b) above.
3.2 Restrictions. Except as otherwise explicitly provided in this Agreement, Subscriber will not, and will not permit or authorize third parties (including, without limitation, any Authorized User), to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure of the Software or the source code of the Software, except to the extent such a restriction is not permitted by applicable law and provided that, in such event, Subscriber must first request such code from Trym in writing in advance and any such use will be limited as needed for interoperability; (b) distribute, license, sublicense, assign, transfer, provide, lend, rent, lease, disclose, use for timesharing or service bureau purposes or otherwise use or permit third parties to use the Trym System or any part thereof for the benefit of any third party, (except as expressly and specifically authorized in writing by Trym); (c) modify, adapt, translate, or create derivative works of the Software or Documentation; nor (d) circumvent or disable any security or other technological features or measures of the Trym System; (e) use or access the Trym System, or any part thereof, in order to build a similar or competitive product or service or disclose to any third party any benchmarking or comparative study involving any Trym System; (f) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Trym or its suppliers on or within the Trym System (or any part thereof); or (g) violate any applicable laws or regulations, or the rights of any third party in connection with the use or access of the Trym System. Trym reserves all rights and licenses not expressly granted to Subscriber in Section 3.1 and no implied license is granted by Trym. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR AT TRYM’S CONTROL) WILL RENDER THE SOFTWARE (AND RELATED DATA) UNUSABLE UPON TERMINATION OR SUBSCRIBER’S BREACH OF THIS AGREEMENT.
3.3 Authorized Users. Subscriber agrees that it shall not permit any person other than Authorized Users to access and use the Trym System, and shall ensure that Authorized Users use the Trym System solely in accordance with this Agreement and the applicable Usage Parameters. Subscriber acknowledges and agrees that Subscriber is solely responsible for the use of the Trym System by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Subscriber.
3.4 Mobile Devices. Subscriber acknowledges and agrees that in order to use the Software, Authorized Users must have a compatible mobile device. Subscriber and its Authorized Users are solely responsible for determining whether or not a mobile device is or is not compatible with the Software and Trym makes no representations or warranties whatsoever regarding the Software and compatibility with any mobile device. Subscriber acknowledges and agrees that it and its Authorized Users are solely responsible for any fees or charges incurred from use of the Software through mobile devices, including, without limitation, any mobile phone provider charges for SMS, data services, etc.
3.5 Subscriber Data. As between the Subscriber and Trym, Subscriber is solely responsible for the accuracy, quality and integrity of the documents and other content, data, information (including, personal information), and materials submitted by, or collected on behalf of, Subscriber and/or Authorized Users in connection with the use of and access to the Trym System (collectively, “Subscriber Data”), and shall ensure that it has all necessary rights to provide and use the Subscriber Data in connection with the use of the Trym System. Trym may use, store and host the Subscriber Data to the extent necessary in connection with providing the Trym System and other services hereunder, except as otherwise expressly permitted in this Agreement. Subscriber Data shall be deemed Subscriber’s Confidential Information. Notwithstanding the foregoing, Trym may use and exploit for any purpose any and all aggregated non-personally identifiable data or information resulting from Subscriber’s or its Authorized Users’ use of the Trym System or other services provided by Trym.
3.6 Open Source Software; Third Party Software. The Software may contain open source software components (“Open Source Components”). Such Open Source Components are not licensed under these Terms, but are instead licensed under the terms of the applicable open source license. Subscriber’s use of each Open Source Component is subject to the terms of each applicable license which are available to Subscriber on request from Trym and, notwithstanding any provision herein to the contrary, Subscriber is solely responsible for its compliance with such licenses. As used in these Terms, “Software” does not include Open Source Components. In addition, the Hardware may contain certain third party software components (“Third Party Software”) which are subject to certain third party licenses. Such third party licenses are either provided to Subscriber at the time of sale or are provided to Subscriber in the form of a click wrap agreement upon deployment of the Hardware. As used in these Terms, “Software” does not include Third Party Software.
3.7 Third Party Integrations. The Trym System may allow Subscriber to connect to and/or integrate certain third party products, services or software under separate terms and conditions (collectively, “Third Party Integrations”). Subscribers acknowledges and agrees that the access and use of such Third Party Integrations is governed solely by the terms and conditions of such Third Party Integrations, and Subscriber does not endorse, is not responsible for, and make no representations as to such Third Party Integrations. Trym is not liable for any damage or loss caused or alleged to be caused by or in connection with the access or use of any such Third Party Integrations.
3.8 Auditing Usage and Maintenance. The Trym System includes a feature that reports general metric and diagnostic information about Subscriber’s use of the Trym System, such as configuration files, node count, software versions, log files and other information regarding Subscriber’s environment, but in no event will such metric and diagnostic information include any of Subscriber’s content such as user names, passwords or other confidential data. This feature is required to be enabled as part of the Subscription.
3.9 Additional Trym App Terms and Conditions
(a) Trym iOS Apps. The following additional terms and conditions apply with respect to any Trym App that Trym provides to Subscriber hereunder, that is designed for use on an Apple iOS-powered mobile device (an “iOS App”): Subscriber acknowledges that this Agreement is between Subscriber and Trym only, and not with Apple, Inc. (“Apple”). Subscriber’s use of Trym’s iOS App must comply with Apple’s then-current App Store Terms of Service. Trym, and not Apple, are solely responsible for the iOS App and the Service and related content available thereon. Subscriber acknowledges that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. Subscriber agrees that Trym, and not Apple, is responsible for addressing any claims by Subscriber or its Authorized Users relating to the iOS App or Subscriber’s or its Authorized Users’ possession and/or use of the iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this agreement and any law applicable to Trym as provider of the iOS App. Subscriber agrees that Trym, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or Subscriber’s or its Authorized Users’ possession and use of the iOS App. Subscriber represents and warrants that Subscriber and its Authorized Users (a) are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) are not listed on any U.S. Government list of prohibited or restricted parties. Subscriber agrees to comply with all applicable third-party terms of agreement when using the iOS App (e.g., Subscriber must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as it relates to the license granted herein to Subscriber to use the iOS App. Upon Subscriber’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Subscriber as they relate to the license granted herein to Subscriber to use the iOS App as a third-party beneficiary thereof.
(b) Trym Android Apps. The following additional terms and conditions apply with respect to any Trym App that Trym provides to Subscriber hereunder, that is designed for use on an Android-powered mobile device (an “Android App”): Subscriber acknowledges that this Agreement is between Subscriber and Trym only, and not with Google, Inc. (“Google”). Subscriber’s use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where Subscriber has obtained the Android App. Trym, and not Google, is solely responsible for the Android App and the Service and related content available thereon. Google has no obligation or liability to Subscriber, or its Authorized Users with respect to the Android App or this Agreement. Subscriber acknowledges and agrees that Google is a third-party beneficiary to this Agreement as it relates to the Android App.
4. Support. During the applicable Subscription Term (subject to Subscriber’s payment of applicable fees), Trym will use commercially reasonable efforts to provide Subscriber with remote technical support services relating to Subscriber’s use of the Trym System by email or phone from 8am-5pm Pacific, Monday through Friday, excluding holidays (“Support”) in accordance with Trym’s then current Support terms and conditions. Any additional or enhanced support services, including, without limitation, and on-site support or maintenance for the Hardware or Firmware will be charged at Trym’s then-current professional fees.
5. Proprietary Rights. Trym and its suppliers retain all right, title and interest in and to all Intellectual Property Rights in the Software, Firmware, Documentation, and all other materials provided or made available to Subscriber in connection with the services provided by Trym, and any and all modifications, updates, and enhancements to the foregoing items. Title to the Trym System, and any copies in whole or in part thereof, and all rights therein, including all rights in patents, copyrights, trade secrets, and trademarks applicable thereto, are and shall remain in Trym. Subscriber will not represent or assert any ownership interest in the Trym System. Notwithstanding the foregoing, Subscriber shall retain title to the Hardware purchased hereunder, subject to Trym’s intellectual property rights in any Firmware. In addition, Subscriber hereby licenses Feedback to Trym on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for Trym to use and exploit in any manner and for any purpose. “Feedback” means any and all suggestions and feedback provided to Trym by Subscriber or any Authorized Users regarding the functioning, features, and other characteristics of the Trym System (or any part thereof), or other materials or services provided or made available by Trym hereunder.
6. Term and Termination
6.1 Term. Subject to termination as set forth in this Section 6, the term of this Agreement will commence on the effective date and will continue for as long as any Software, Professional Services, Support or other services are being provided to Subscriber under this Agreement. The term of the Software license (and subject to Section 7.4, the corresponding periodic Subscription Fees) set forth in an Order Form shall automatically renew for successive terms equal in duration to the initial license term unless either party notifies the other party in writing, not less than thirty (30) calendar days before the expiration of the then-current Subscription Term, that such party does not wish to renew the Subscription.
6.2 Termination. Either party may terminate this Agreement immediately without further notice if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
6.3 Effect of Termination. If this Agreement is terminated for any reason, upon such termination the licenses granted under this Agreement in respect of the Trym System shall immediately terminate and Subscriber and its Authorized Users shall cease use of the Software and Documentation and Trym’s obligations to perform Professional Services and Support shall immediately terminate. Subscriber will pay to Trym the full amount of any fees or other amounts that have accrued prior to the effective date of the termination or are otherwise due and payable hereunder. If Subscriber terminates the Agreement (or any specific Subscription) for any reason other than in accordance with Section 6.2, the Subscription Fees for the entire term of the Agreement or remainder of the Subscription (as applicable) shall be immediately due and payable. The parties’ obligations under Sections 1, 2.3, 3.2, 3.3, 3.4, 3.6, 3.7, 3.8, 3.9, 5, 6.3, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive any termination and/or expiration of this Agreement.
7. Fees, Payment; Taxes; Records and Audit
7.1 Subscription Fees. The subscription fees payable by Subscriber (which includes Support) will be set forth in each Order Form (“Subscription Fees”). The Subscription Fees shall be paid in advance as specified on the Order Form. Unless otherwise set forth on the Order Form, the Subscription Fees will remain fixed during the Subscription Term unless Subscriber at any time during a Subscription Term (a) exceeds the applicable Usage Parameters (including, without limitation, the permitted number of rooms, facilities, or Authorized Users) or other applicable limits, or (b) Subscriber increases the Usage Parameters or subscribes to additional features or products. Upon any increase in fees pursuant to clause (a) or (b) above, Subscriber shall pay the Subscription Fees for such increase, pro-rated for the remainder of Subscriber’s then-current Subscription Term, and such Order Form shall renew concurrently with Subscriber’s then-current Subscription for a period equal to Subscriber’s initial Subscription Term.
7.2 Payment Terms. All fees are due in advance. Unless otherwise set forth on the applicable Order Form, invoiced fees are due net thirty (30) days from the date of Trym’s invoice. Trym will invoice Subscriber for the fees for the Hardware and Subscription Fees in accordance with the payment terms set forth in the applicable Order Form. Subscriber authorizes Trym, and/or Trym’s third party payment service provider, to charge Subscriber for all applicable fees due by Subscriber hereunder using Subscriber’s selected payment method, and Subscriber will issue the required payment documentation. Unless otherwise set forth on the applicable Order Form, Subscriber shall be automatically charged by Trym, or through Trym’s third party payment service provider, for the Subscription Fees using Subscriber’s selected payment method prior to each billing period specified on the applicable Order Form. If Subscriber’s automatic recurring payment is declined or unable to be processed for any reason, including, without limitation, if Subscriber has changed their payment preferences with such third party payment processor, such payment shall be deemed past due. Payments made under this Agreement after their due date will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. In addition, Trym reserves the right to immediately suspend or terminate any services provided hereunder and/or Subscriber’s access to the Software in the event the fees due and payable by Subscriber are more than thirty (30) days late
7.3 Taxes. Subscriber acknowledges that the fees payable under this Agreement do not include duty, sales, use, excise, import, export, goods and services, value added or similar taxes or duty, including any penalties and interest thereon, and all government permit and license fees and customs and similar fees, which Trym may incur in respect of this Agreement, including any costs expended to collect such amounts from Subscriber (“Taxes”), and Subscriber agrees to pay, indemnify and hold Trym harmless from all applicable Taxes (other than taxes based upon Trym’s net income), unless Subscriber procures and provides to Trym an exemption certificate in a form reasonably acceptable to Trym and to the appropriate taxing authority.
7.4 Change in Fees and Payment Terms. Trym may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for Subscriber until (a) the start of the next Subscription Term (as specified in the applicable Order Form), with respect to any change in fees, and (b) Subscriber’s next billing period with respect to any changes to the payment terms. Trym will provide written notice (which may be provided via email) to Subscriber of any changes to the fees or payment terms that affect the Software licensed and/or any Support and/or Professional Services purchased by Subscriber.
7.5 Records and Audit. Subscriber shall maintain true and correct records related to its activities under this Agreement for at least one (1) year after the expiration or termination of this Agreement. Trym shall be entitled to audit such records upon thirty (30) days prior written notice. Any such audit shall be performed at Trym’s expense during Subscriber’s normal business hours and in a manner that does not unreasonably interfere with Subscriber’s normal business activities and operations. If an audit reveals of monies by Subscriber, Subscriber shall, within thirty (30) days after conclusion of the audit, pay Trym the amounts due as a result of the audit. If Subscriber has underpaid or retained monies otherwise due to Trym that, in the aggregate, equal more than five percent (5%), then Subscriber shall also bear the reasonable cost of the audit.
8. Confidential Information. “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Software and any non-public technical and business information. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Subscriber and Trym will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party’s Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement or if earlier, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
THE HARDWARE, FIRMWARE, SOFTWARE, DOCUMENTATION, PROFESSIONAL SERVICES, SUPPORT AND ANY OTHER MATERIALS AND SERVICES PROVIDED BY TRYM HEREUNDER, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TRYM AND ITS THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE HARDWARE, FIRMWARE, SOFTWARE, DOCUMENTATION, SUPPORT AND PROFESSIONAL SERVICES AND ANY OTHER MATERIALS PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
TRYM DOES NOT WARRANT THAT THE HARDWARE, FIRMWARE, OR SOFTWARE WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT THE OPERATION OF THE HARDWARE, FIRMWARE, OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE HARDWARE, FIRMWARE, OR SOFTWARE WILL BE CORRECTED. SUBSCRIBER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE HARDWARE, FIRMWARE, SOFTWARE, DOCUMENTATION, PROFESSIONAL SERVICES AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED HEREUNDER AND ALL RESULTS OF SUCH USE IS SOLELY AT SUBSCRIBER’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRYM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY.
THE TRYM SYSTEM IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE TRYM SYSTEM COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH RISK ACTIVITIES”). TRYM EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AND ANY OTHER LIABILITY FOR HIGH RISK ACTIVITIES.
TRYM DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY INTEGRATIONS, OPEN SOURCE COMPONENTS OR THIRD PARTY SOFTWARE, AND TRYM WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY INTEGRATIONS, OPEN SOURCE COMPONENTS OR THIRD PARTY SOFTWARE.
10. Subscriber Indemnification. Subscriber shall indemnify Trym and hold Trym, its officers, directors, shareholders, employees, insurers, attorneys, successors and assigns harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to (a) Subscriber’s breach of this Agreement, any license applicable to the Open Source Components or Third Party Software, Third Party Integrations, or violation of any applicable law, rule or regulation; (b) Subscriber’s or its Authorized Users’ use of the Trym System, Software, Professional Services and/or Support; and (c) Subscriber’s gross negligence, fraudulent misrepresentation or willful misconduct. Trym shall promptly notify Subscriber in writing of such action, giving Subscriber sole control of the defense thereof and any related settlement negotiations, and at Subscriber’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Subscriber enter into any settlement that involves an admission of liability, negligence or other culpability of Trym or requires Trym to contribute to the settlement without Trym’s prior written consent. Trym may participate and retain its own counsel at its own expense.
11. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT TRYM BE LIABLE FOR PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR FOR ANY COST OF COVER, LOSS OF PROFIT, USE, SAVINGS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, IMPAIRMENT OF OTHER ASSETS, OR THE CLAIMS OF THIRD PARTIES ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRYM’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE BY SUBSCRIBER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE SECTIONS ON LIMITATION OF LIABILITY, WARRANTIES AND DISCLAIMER OF WARRANTIES ALLOCATE THE RISKS IN THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. Import and Export Regulations. Subscriber acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including the Trym System. Subscriber agrees that it will not export or re-export the Trym System, in whole or in part, without the appropriate United States or foreign government licenses. Without limiting the foregoing, (i) Subscriber represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Subscriber shall not permit access or use of the Trym System in violation of any U.S. export embargo, prohibition or restriction, and (iii) Subscriber shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Trym System is located.
13. Governing Law; Venue; Attorneys’ Fees. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco, California in connection with any action arising out of or in connection with this Agreement. Notwithstanding anything in this Agreement to the contrary, Trym may seek injunctive or other equitable relief in any court of competent jurisdiction to protect any actual or threatened misappropriation or infringement of its intellectual property rights or those of its licensors. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement. Furthermore, this Agreement (including without limitation, the Software, Firmware and services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. The prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action.
14. Amendments; Modifications. Except as otherwise stated herein, Trym may, and reserves the right to, modify, update, amend, and/or change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the Trym website. Trym will notify Subscriber of any changes that, in Trym’s sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and Subscriber’s continued use of the Trym System after any such changes are effective will constitute Subscriber’s consent to such changes. Except for changes made by Trym as described here, no other amendment or modification of this Agreement will be effective unless mutually agreed to in writing by both Subscriber and Trym.
15. General. During the term of this Agreement, Subscriber hereby agrees that Trym shall have the right, but not the obligation, to include Subscriber’s name and logo as a Subscriber who uses the Trym System on the Trym’s website and in other marketing materials promoting the Trym System. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Subscriber may not assign this Agreement by merger, operation of law or otherwise, in whole or in part, without Trym’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void. The relationship between Trym and Subscriber established by this Agreement is that of independent contractors. No franchise, joint venture or partnership is established by this Agreement. Neither party hereunder is the agent, broker, partner, employee, or legal representative of the other for any purpose. All notices under this Agreement will be deemed given when delivered personally, upon confirmation of transmission if sent by email, or sent by certified or registered U.S. mail or nationally-recognized express courier, return receipt requested, to the address set forth on the initial Order Form or as may otherwise be specified by either party to the other in accordance with this section. Without limiting the foregoing, whenever Subscriber accesses the Software or Trym website, or sends emails to Trym, Subscriber is communicating with Trym electronically. For that reason, Subscriber also consents to receive communications from Trym electronically, including by e-mail and notices posted on the Trym website or through the user interface of the Software. Subscriber agrees that all agreements, notices, disclosures, and other communications that Trym provides to Subscriber electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law. The failure of either party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party to thereafter enforce any such provision. If any term of this Agreement is found to be illegal or unenforceable, the remaining portions of this Agreement shall remain in effect, provided that the parties agree to negotiate in good faith substitute enforceable terms. This Agreement (which includes all Order Forms entered into hereunder) is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Trym System. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except to the extent Trym makes any software or other products and services available to Subscriber under separate written terms. Trym will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, and such terms shall have no force or effect.