Tomitribe Limited Software Subscription T & C

Tomitribe Limited Software Subscription Terms and Conditions

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

Tomitribe Corporation, a Delaware corporation (“Tomitribe“), shall provide Technical Software Subscription Services (as defined herein) (collectively, the “Services”) to Customer per the terms of this Agreement (the “Agreement“), the End User License Agreement (“Subscription“) and Customer Order (defined below). In the event of any conflict between this Agreement, Customer Order and the Subscription, the terms of the Subscription shall control. As set forth in Customer Order, the terms of this Agreement may be modified at any time, in Tomitribe’s sole discretion. The applicable Tomitribe entity, Effective Date, Software and allowed Vendor Product will be set forth on the applicable order confirmation, enterprise license agreement, or other order form or purchase order issued by Customer to Tomitribe or to an Tomitribe authorized reseller, which has been accepted by Tomitribe (collectively the “Order“).

1. DEFINITIONS.
   1. “Account” represents your legal relationship with Tomitribe and provides access to the Website and Services under this agreement.
   2. “Content” refers to content featured or displayed through the Website, including without limitation code, text, data, articles, images, photographs, graphics, software, applications, packages, designs, features, and other materials that are available on the Website or otherwise available through the Service. “Content” also includes Services.
   3. “Party” means You or Tomitribe singularly. You and Tomitribe are collectively referred to herein as the “Parties.”
   4. “Software” means the proprietary Tomitribe software which You acquire a license under an Order for the particular Subscription Term.
   5. “Support Services” means the provision of telephone or web-based technical assistance by Tomitribe to the Your technical contact(s) at the corresponding Services level according to Tomitribe Support Guidelines, subject to You purchasing these services from us.
   6. “Vendor” means the creator, owner, producer, provider or distributor of the Vendor Product.
   7. “Vendor Product” means the third-party software product listed in the Order that is permitted be installed and run on the Software.
   8. “Promotional Code” means a code redeemable at purchase or registration offering promotions or discounts for Tomitribe products and services.
   9. “Issuer” means entity authorized by Tomitribe to extend Promotional Codes to You.
   10. “Website” refers to Tomitribe’s website located at tomitribe.com, and all content and services provided by Tomitribe at or through the Website. It also refers to Tomitribe-owned subdomains of tomitribe.com, such as support.tomitribe.com and download.tomitribe.com. Occasionally, websites owned by Tomitribe may provide different or additional terms of service. If those additional terms conflict with this Agreement, the more specific terms apply to the relevant page or service.
2. ACCOUNT TERMS.
   1. Business Contact. The “business contact” is the owner of the Account that was created under these Terms has ultimate administrative control over that Account and the Content within it. Within the Service, an owner can manage access to the Accounts’s data and software. An Account may have multiple owners, but there must be at least one Business Contact designated as owner of the Account. If you are the owner of an Account under these Terms, we consider you responsible for the actions that are performed on or through that Account.
   2. Download Contacts. The “download contacts” are the individuals in the organization authorized to accept the EULA via click-through and proceed to downloading Software provided under the Subscription. Download Contacts may only be added by the Business Contact of the Account and must have the legal authority to agree to the associated EULA on behalf of the Account.
   3. Required Information. You must provide a valid company name, company address, contact name and contact email address in order to complete the signup process.
   4. Account Requirements. We have a few simple rules for Accounts on Tomitribe’s Service.
      1. You must be a human to create an Account. Accounts registered by “bots” or other automated methods are not permitted.
      2. Your login may only be used by one person — i.e., a single login may not be shared by multiple people. A paid Account may only provide access to as many Download Contacts as your subscription allows.
   5. Account Security. You are responsible for keeping your Account secure while you use our Service. Tomitribe offers tools such as two-factor authentication to help you maintain your Account’s security, but the content of your Account and its security are up to you.
      1. You are responsible for all content posted and activity that occurs under your Account.
      2. You are responsible for maintaining the security of your Account and password. Tomitribe cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
      3. You will promptly notify Tomitribe by contacting us through the Tomitribe Support portal if you become aware of any unauthorized use of, or access to, our Service through your Account, including any unauthorized use of your password or Account.
3. SOFTWARE RESTRICTIONS AND VENDOR PRODUCT.
   1. Permitted Applications. The Software provided under this agreement is intended solely for the purposes of running the Vendor Product. Use of the Software for running bespoke software, internal applications, other third-party software or any other purpose requires a separate agreement with Tomitribe purchased at Tomitribe’s then going rates.
   2. Vendor Product Not Included. You are responsible for all licensing of the Vendor Product permitted to run on our Software. Vendor Products must be obtained from the provider directly.
   3. Support Not Included. Tomitribe bears no responsibility for your use of the Vendor Product and cannot assist in technical support of the Vendor Product in any form. Issues related to use of the Software in conjunction with the Vendor Product must be reported directly to the provider of the Vendor Product.
4. ACCEPTABLE USE BY CUSTOMERS.Your use of the Website and Service must not violate any applicable laws, including copyright or trademark laws, export control or sanctions laws, or other laws in your jurisdiction. You are responsible for making sure that your use of the Service is in compliance with laws and any applicable regulations.
5. ACCEPTABLE USE BY VENDOR.The Vendor of the Vendor Product is expressly prohibited from entering into this agreement for the purchase, licensing, or any form of usage of the Software. This prohibition is comprehensive and includes, but is not limited to, internal business operations of the Vendor, incorporation or integration of the Software within the Vendor Product, services, or any offerings of the Vendor. Moreover, the Vendor is barred from employing the Software in a service bureau model or any similar operational frameworks where the Software could be utilized to render services to third parties. Additionally, the Vendor is prohibited from redistributing, reselling, sublicensing, or otherwise providing the Software, directly or indirectly, to other entities for any commercial or non-commercial purposes.
6. COMMUNICATIONS WITH TOMITRIBE.
   1. Electronic Communication Required. For contractual purposes, you (1) consent to receive communications from Tomitribe in an electronic form via the email address you have submitted or via the Service; and (2) agree that all Terms of Service, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that those communications would satisfy if they were on paper. This section does not affect your non-waivable rights.
   2. Legal Notice to Tomitribe Must Be in Writing. Communications made through email or Tomitribe Support’s messaging system will not constitute legal notice to Tomitribe or any of its officers, employees, agents or representatives in any situation where notice to Tomitribe is required by contract or any law or regulation. Legal notice to Tomitribe must be in writing and served on Tomitribe legal agent.
   3. No Phone Assistance. Tomitribe only offers assistance via email, in-Service communications, and electronic messages. We do not offer telephone assistance.
7. INTELLECTUAL PROPERTY NOTICE.Tomitribe and our licensors, vendors, agents, and/or our content providers retain ownership of all intellectual property rights of any kind related to the Website, Service and Software. We reserve all rights that are not expressly granted to you under this Agreement or by law. The look and feel of the Website and Service is copyright © Tomitribe Corporation. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, JavaScript, or visual design elements or concepts without express written permission from Tomitribe.
8. PAYMENT.
   1. Pricing. Tomitribe’s pricing and payment terms are available at https://www.tomitribe.com/v/products/. If you agree to a subscription price, that will remain your price for the duration of the payment term; however, prices are subject to change at the end of a payment term.
   2. Billing Schedule; No Refunds. For monthly or yearly payment plans, the Service is billed in advance on a monthly or yearly basis respectively and is non-refundable. Monthly payment plans require an initial minimum term of 12 months. There will be no refunds or credits for partial months of service, or refunds for months unused with an open Account; however, the service will remain active for the length of the paid billing period. In order to treat everyone equally, no exceptions will be made.
   3. Authorization. By agreeing to these Terms, you are giving us permission to charge your on-file credit card, PayPal account, or other approved methods of payment for fees that you authorize for Tomitribe.
   4. Responsibility for Payment. You are responsible for all fees, including taxes, associated with your use of the Service. By using the Service, you agree to pay Tomitribe any charge incurred in connection with your use of the Service. If you dispute the matter, contact us through the [email protected]. You are responsible for providing us with a valid means of payment for paid Accounts. Free Accounts or Accounts registered via a Promotional Code providing free service are not required to provide payment information.
9. DISCLAIMER OF WARRANTIES.
   1. Software Performance Warranty and Remedy. Tomitribe makes no warranty to You other than that, during the License Term, the Software will perform in all material respects in accordance with its Documentation. The exclusive remedy and Tomitribe’s sole obligation for any failure of the Software to perform in all material respects in accordance with its Documentation will be for Tomitribe to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from misuse, casualty loss, use or combination of the Software with any products, goods, services or other items furnished by anyone other than Tomitribe (unless recommended by Tomitribe in writing), any modification not made by or for Tomitribe, or any use of the Software by You in contradiction of the terms of this Agreement.
   2. Warranty Disclaimer and Limitations. EXCEPT AS SET FORTH IN SECTION 9.1, ALL PRODUCTS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE SUPPORT SERVICES, TRAINING SERVICES AND THE SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND TOMITRIBE MAKES NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING THERETO. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TOMITRIBE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE SOFTWARE, DOCUMENTATION, SUPPORT SERVICES AND TRAINING SERVICES PROVIDED BY TOMITRIBE HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, TOMITRIBE DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT THE YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED. IN THE EVENT THAT
      APPLICABLE LAW DOES NOT PERMIT SOME OR ALL OF THE DISCLAIMER SET FORTH HEREIN, ANY LIABILITY WILL BE SUBJECT TO THE LIMITATION OF LIABILITY IN SECTION 10.
10. LIMITATION OF LIABILITY.
    1. Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL TOMITRIBE AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER TOMITRIBE, ITS AUTHORIZED RESELLERS, ITS VALUE ADDED RESELLERS AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    2. Damages Cap. IN NO EVENT SHALL TOMITRIBE’S AGGREGATE, CUMULATIVE LIABILITY TO YOU AND ANY RESELLER THROUGH WHICH YOU PURCHASED THE SOFTWARE UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO POTENTIAL LIABILITY, INDEMNITY OBLIGATIONS AND ATTORNEYS’ FEES EXCEED THE LESSER OF (A) AMOUNTS PAIDTO TOMITRIBE UNDER THIS AGREEMENT FOR THE SOFTWARE, THE SUPPORT SERVICES OR THE TRAINING SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
    3. Further Limitations. Tomitribe’s licensors, authorized resellers and value added resellers shall have no liability of any kind under this Agreement. You may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises.
    4. YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A BARGAINED FOR REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
11. CANCELLATION AND TERMINATION.
    1. Cancellation. You can cancel and terminate your Account at any time after the 12-month minimum term by going into your My Subscription page in the Download Portal. The My Subscription screen provides a simple, no questions asked cancellation link. We are not able to cancel Accounts in response to an email or phone request.
    2. Termination on Promotional Code Revocation. If this subscription was purchased using a Promotional Code, the Issuer may revoke the Promotional Code and terminate this subscription.
    3. Termination for Breach. Tomitribe may terminate this Agreement effective immediately upon written notice to You if: (a) You fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from Tomitribe or its authorized reseller that payment is past due; or (b) You breach any other provision of this Agreement and fail to cure within thirty (30) days after receipt of written notice thereof.
    4. Termination for Insolvency. Tomitribe may terminate this Agreement effective immediately upon written notice to You if You: (a) terminate or suspend Your business; (b) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding.
    5. Effect of Termination. Upon Tomitribe’s termination of this Agreement: (a) Your Account with Tomitribe will be closed and all access Tomitribe systems, services, and further product updates will cease; and (b) all Licensed rights to all Software granted to You under this Agreement will immediately cease unless stated otherwise in the corresponding EULA. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 4 (Intellectual Property Notice), 8 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Termination), 12 (Confidential Information) and 14 (General).
    6. No Liability for Expiration or Lawful Termination. Neither Party shall have the right to recover damages or to indemnification of any nature, whether for goodwill or otherwise, made in connection with the business contemplated by this Agreement due to the expiration or lawful termination of this Agreement. EACH PARTY WAIVES AND RELEASES THE OTHER PARTY FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT.
12. CONFIDENTIAL INFORMATION.
    1. Definition. “Confidential Information” means information or materials provided by one party (” Discloser”) to the other party (“Recipient”) which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) License Keys; (b) information regarding Tomitribe’s pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software, including without limitation, computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether or not patentable), schematics and other technical plans.
    2. Protection. Recipient may use Confidential Information of Discloser; (a) to exercise its rights and perform its obligations under this EULA; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this EULA, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this EULA and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
    3. Exceptions. Recipient’s obligations under Section 13.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
13. CHANGES TO THESE TERMS.Tomitribe reserves the right, at our sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. Tomitribe will notify our Users of material changes to this Agreement, such as price increases, at least 30 days prior to the change taking effect by posting a notice on our website or sending email to the Administrator specified in your Account. Your continued use of the Service after those 30 days constitutes agreement to those revisions of this Agreement. For any other modifications, your continued use of the Software and Services constitutes agreement to our revisions of these Terms of Service.We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part of it) with or without notice.
14. GENERAL.
    1. Transfers; Assignment. You will not assign this Agreement, any Order, or any right or obligation herein or delegate any performance without Tomitribe’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by You will be void. Tomitribe may use its Affiliates or other sufficiently qualified subcontractors to provide services to You, provided that Tomitribe remains responsible to You for the performance of the services.
    2. Assignment. You may not assign this Agreement, in whole or in part, without the prior written consent of Tomitribe. Any assignment in violation of this Section shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
    3. Notices. Any notice delivered by Tomitribe to You under this Agreement will be delivered via mail, email or fax.
    4. Waiver. Failure to enforce a provision of this Agreement will not constitute a waiver.
    5. Severability. If any part of this Agreement is held unenforceable, the validity of all remaining parts will not be affected.
    6. Governing Law. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Central District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in Los Angeles County. The Parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non convenient or any similar claim or defense. A breach by either Party of Section 13 would cause irreparable harm for which the non-breaching Party shall be entitled to seek injunctive relief.
    7. Attorneys’ Fees. In any judicial proceeding between You and Tomitribe arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees.
    8. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes or fuel crises, provided that such Party gives prompt written notice thereof to the other Party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than sixty days.
    9. Third Party Rights. Other than as expressly set out in this agreement, this agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
    10. No Third Party Modifications. No authorized reseller, value added reseller or agent has any authority to modify or alter the terms of this agreement in any manner. Any such representations are invalid and of no force or effect. If You believe that an authorized reseller, value added reseller or agent has offered You terms that are inconsistent with this agreement, then you must not use the Tomitribe Software.
    11. Entire Agreement. This agreement, including accepted Orders and any amendments hereto, together with the EULA, represents the entire agreement of the Parties with respect to the subject matter of this Subscription and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This Subscription may be amended only in writing signed by authorized representatives of both parties.
    12. Contact Information. Please direct legal notices or other correspondence to Tomitribe Corporation at email address: [email protected], Attention: Legal Department.

version 1.0, January 2024