Infillion Subscription & Product Agreement
GIMBAL LICENSES TO YOU THE SOLUTION PRODUCTS IDENTIFIED IN A QUOTATION, WHICH IS MADE PART OF THIS AGREEMENT. BY SIGNING THE QUOTATION, YOU HAVE ACCEPTED THIS AGREEMENT. DOWNLOADING, INSTALLING OR USING THE SOLUTION PRODUCTS ALSO CONFIRMS YOUR ACCEPTANCE OF THIS AGREEMENT
The parties agree:
“Affiliate”means an entity controlling, controlled by, or under common control, where control is established by a majority ownership (greater than fifty percent (50%)) or franchise; provided, however, that the term “Affiliate” shall not include an entity which is a direct competitor of Gimbal.
“Application” means each software application Customer develops, or has developed on its behalf, and that is intended to be distributed to End Users. Customer owns and retains all right, title, and interest in and to the Application.
“Beacon” is the hardware and its Firmware that transmits a signal. Beacons may be purchased through i) a Gimbal sales representative, ii) a Gimbal Authorized Reseller, or iii) directly from Gimbal’s Store at https://store.infillion.wpengine.com/.
“Customer Data”means data and information derived from Customer Technology.
“Customer Technology” means all applications, processes, and programs that exist as of the Execution Date that are developed by Customer, not including Gimbal Technology.
“Derivative Work” means any work, invention, new material, information, or data created by or with the Gimbal Technology including any derivative work, improvement, extension, revision, modification, information, translation, abridgment, condensation, expansion, collection, compilation, error correction, or any other form in which the Gimbal Technology may be recast, transformed or adapted.
“Documentation” means the product installation instructions, user manuals, release notes, support articles, and operating instructions prepared by Gimbal, in any form or medium, as available, and as may be updated from time to time by Gimbal and made generally available to customers. “End User” means the ultimate user of an Application.
“End User” means the ultimate user of an Application.
“Fees” means the agreed upon fees and charges in an Order or in the absence of an Order, the fees stated in the Fee Schedule specified at https://infillion.wpengine.com/pricing.
“Firmware”is the embedded, licensed Gimbal software within a Beacon or other device as Gimbal may approve and license at its sole discretion.
“Gimbal Technology” means all applications, processes, web-based programs or services, technology and any other works licensed, owned, or developed by Gimbal including without limitation, Gimbal’s proprietary platform, dashboards, and Solution.
“Order”means a purchase commitment mutually agreed upon between Gimbal and Customer, including purchases pursuant to a Statement of Work (“SOW”) or made at https://store.infillion.wpengine.com/ (“Gimbal Store”).
“Permitted Capacity” means the number of Software Development Kits (“SDK”) instances that connect with Gimbal servers; number of Beacons; or other license metrics as may be set forth in an Order.
“Premium Geofences” means the radial or polygon virtual perimeter for a geographic area, and any related meta data which is licensed to Customer. For the avoidance of doubt, a Premium Geofence does not include the latitude and longitude as a regular geofence does.
“Software” means Gimbal’s proprietary software (Solution Manager, Firmware, sample application code, SDKs including associated Application Programming Interfaces (“API”) in object code only or, in connection with sample application code, both object and source code as well as any Software Updates.
“Software Updates”means modifications, bug fixes, updates, or hot-fixes to the Software, but excludes new features, products or functionality for which Gimbal may charge a separate fee.
“Solution” includes Software, Beacons, applicable Documentation, and the Solution Manager.
“Solution Manager”means the Gimbal web-based Software-as-a-Service platform that: i) enables Customer to setup and manage their developer account, activate and configure Beacons, and use functionality available via a web-based administration console, ii) serves as the service endpoint for all communication made from the Gimbal SDK, and iii) exposes other APIs as Gimbal may make available to Customer, and iv) may include access to certain Premium Geofences but only as specified in an Order.
“Subscription” means a non-exclusive, personal, non-transferable right to use the Software in accordance with this Agreement and an Order.
“Subscription Term” means the time period Customer is authorized to use the Solution defined in an Order.
“Support” means the level of technical support provided to Customer by Gimbal. Standard Support is included for all Customers but additional Fees may be paid for premier tiers of support at Customer’s option.
“Territory”means the territories specified at https://infillion.wpengine.com/legal/supported-countries.
2. Right to Use and License Grants.
Subject to the provisions contained in this Agreement and timely payment of the applicable Fees, Gimbal grants to Customer and its Affiliates, solely within the Territory, during the Subscription Term, and up to the Permitted Capacity:
2.1 SaaS Subscription Right to Use. A non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Subscription Term to use the and, if Customer also obtains Beacons pursuant to an Order, the right to use the Firmware. The right to use in this paragraph 2.1 is solely for Customer’s use with Applications. Firmware may only be used in conjunction with Beacons, Beacons may only be used in conjunction with the Software, and Customer’s Application and each Software key may only be used with a single Application.
2.2 License to Software Development Kit. A non-exclusive, non-transferable, non-sublicensable, revocable, limited license during the Subscription Term to use the SDK in conjunction with the Application.
2.3 License to Sample Application Source Code. A non-exclusive, non-transferable, revocable, non-sublicensable limited license during the Subscription Term to (i) access, use, modify, and distribute, the sample application source code as part of an Application, (ii) compile the sample application source code and Customer’s modifications thereto into object code as part of an Application.
2.4 License to Documentation. The right to use and reproduce copies of the Documentation for internal use. Documentation is Confidential Information and protected under Section 7.
2.5 License to Premium Geofences. For the Subscription Term, a limited, non-exclusive, non-transferable, revocable, non-sublicensable license to access and use certain Premium Geofences in conjunction with an Application as may be specified in an applicable Order.
3. Provision of Solution.
3.1 If Gimbal determines that the security or proper function of the Solution would be compromised due to malicious or harmful code, or other activities originating from or directed at Customer’s network, Gimbal may immediately suspend the Solution until the issue is resolved. Gimbal will promptly notify and work with Customer to resolve such issues.
3.2 Gimbal may modify, enhance, replace, or make additions to the Solution and use information passing through the Solution for the purposes of developing, analyzing, maintaining, reporting, and enhancing the Solution and related services.
3.3 If Customer’s use of the Solution results in the distribution of the Solution because of spam or malware, Gimbal may suspend the Solution until the issue is resolved.
4. Customer Obligations.
Customer will itself and as applicable, will also require its contractors, developers, or third-parties to:
4.1 comply with all laws, statutes, regulations, and ordinances applicable to the Solution and only use the Solution for legitimate business purposes,
4.3 provide Gimbal with device advertising identifiers (e.g. a Google Advertising ID for Android Applications or an Apple Advertising Identifier (IDFA) for iOS Applications) for all Applications that integrate Software,
4.4 include a mandatory, legally binding End User license agreement between End User and Customer for each Application that is at least as protective of Gimbal as provided in this Agreement,
4.7 safeguard the Solution and ensure no unauthorized person has access and that no unauthorized copy, publication, disclosure, or distribution, in any form, is made. Customer may not itself, or through any Affiliate, franchisee, employee, or third party (i) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Solution, in whole or in part; (ii) except for sample application code, write or develop any derivative works based upon the Solution; (iii) modify, adapt, translate or otherwise make any changes to the Solution or any part thereof; nor (iv) disclose or publish performance or capacity statistics or the results of any test performed on the Solution. If any additional third party license agreement is included in the Solution, Customer’s use of the third party software is subject to the third party licensor’s license agreement,
4.8 defend, indemnify and hold Gimbal harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any third party claims, demands, suits, or proceedings made or brought against Gimbal alleging or related to Customer’s (i) violation or failure to comply with its obligations in this Section 4; (ii) infringement of intellectual property rights; (iii) civil or criminal offenses; or (iv) transmission of Customer’s or End User information through the Solution.
5. Technical Support.
Standard tier technical support is included for Customer as described in Exhibit A. Premium technical support is available for an additional fee as may be described in an Order.
6. Intellectual Property Rights.
The Solution and all related intellectual property rights are the exclusive property of Gimbal or its licensors. All right, title and interest in and to the Solution, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Solution remain exclusively with Gimbal or its licensors. The Solution is valuable, proprietary, and unique, and Customer agrees to be bound by and observe the proprietary nature of the Solution. The Solution contains material that is protected by patent, copyright and trade secret law, and by international treaty provisions. The Solution includes software licensed from third parties. All rights not granted to Customer in this Agreement are reserved to Gimbal. No ownership of the Solution passes to Customer. Gimbal may make changes to the Solution at any time without notice. Except as otherwise expressly provided, Gimbal grants no express or implied right under Gimbal or its licensor’s patents, copyrights, trademarks, or other intellectual property rights. Customer may not remove or alter any proprietary notice of Gimbal or any third party from the Solution or any copy of the Solution, without Gimbal’s prior written consent. In no event shall either party incorporate, link to, distribute or use any open source software or code in conjunction with the Software, Solution, or Applications, or any modifications, updates or derivatives of any of the foregoing that requires any intellectual property owned or licensed by the other party to be (i) disclosed or distributed in source code or object code form, (ii) licensed for the purpose of making derivative works, or (iii) otherwise sub-licensable or redistributable without agreement from the other party nor may either party otherwise encumber the other party’s intellectual property.
7. Data Rights.
7.1 Customer owns and retains all right, title, and interest in and to the Customer Data. The Customer Data may be used by Customer for any purpose without payment or attribution to Gimbal.
7.2 Customer will not market, rent, distribute (except as expressly permitted herein), transfer, license, sublicense, sell, or furnish to any third party all or any part of the Gimbal Technology or Derivative Work beyond the scope of this Agreement or the grants herein.
7.3 Gimbal owns and retains all right, title, and interest in the Gimbal Technology and Derivative Work which may be used by Gimbal for any purpose without payment or attribution to Customer. For the avoidance of doubt, Gimbal may use the Derivative Work for any Gimbal internal or business purpose in aggregate or anonymous form (including as a part of Gimbal’s predictive data modeling and analysis, and for any use in Gimbal’s products and services for any third party) so long as Gimbal does not use the Derivative Work in a manner that identifies Customer.
Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, prototypes, equipment, technical data, trade secrets and know-how, product plans, solution, services, suppliers, customer lists and customer information, prices and costs, markets, software, geofence data, databases, developments, inventions, processes, formulas, technology, employee information, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information), which is designated as “Confidential”, “Proprietary”, or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Disclosing Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information does not include information which the Receiving Party can document (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality; (iii) is already in the possession of the Receiving Party at the time of disclosure; (iv) is lawfully obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Each party agrees that all Confidential Information of the other party will be treated by the Receiving Party as non-public confidential information and will not be disclosed to any person other than Disclosing Party and employees and contractors of Receiving Party on a need to know basis and that Receiving Party will protect the confidentiality of such Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event with less than a reasonable standard of care. Each party agrees to only use the Confidential Information of the other party for purposes of carrying out its rights and obligations under this Agreement.
9. Financial Terms.
Except as otherwise expressly specified in an Order, all recurring payment obligations start from the date of execution of an Order. Unless otherwise specified in an Order, payment of all Fees is due at the time an Order is executed. Interest accrues on past due balances at the lesser of 1.5% per month or the highest rate allowed by law. Failure to make timely payments is a material breach of the Agreement for which Gimbal may suspend its performance obligations as well as Customer’s access to the Solution. Customer will reimburse Gimbal for any expenses incurred in collecting amounts due Gimbal that are not under good faith dispute by Customer. Fees paid or payable are not contingent upon the performance of any consulting or other professional services unless specifically indicated in the Order. Gimbal’s reasonable travel and expenses incurred performing any professional services at Customer’s site will be billed separately at actual cost. Customer is responsible for payment of all taxes (excluding those on Gimbal’s net income) arising out of this Agreement and associated Orders, except to the extent a valid tax exemption certificate or other written documentation acceptable to Gimbal to evidence Customer’s tax exemption status is provided by Customer to Gimbal prior to an Order. In the case of Orders placed directly through the Gimbal Store, Customer is responsible for notifying Gimbal in-advance of an individual placing an Order on behalf of Customer so that tax exemptions can be configured appropriately. Gimbal is not a VAT-registered entity in the European Union and therefore cannot provide VAT invoices. All Orders are non-cancellable, and except for warranty returns where applicable, there are no fee adjustments or refunds. Purchases are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written comments made by Gimbal regarding future functionality or features.
10. Limited Warranty; Remedies; Disclaimer.
10.1 For the Subscription Term, Gimbal warrants that the Software, as updated from time to time by Gimbal and used in accordance with the Documentation and the Agreement by Customer, will operate in substantial conformance with the Documentation under normal use. Gimbal does not warrant that the Software will be free of defects, satisfy Customer’s requirements, nor operate without interruption or error.
10.2. Gimbal warrants to Customer that the Beacons sold by Gimbal, but not the batteries, will conform to the Documentation and be free from defects in material and workmanship for ninety (90) days from date of delivery. The sole remedy is to return the Beacon according to instructions provided by Gimbal after obtaining a written return material authorization. If the Beacon is defective, Gimbal will repair or replace it with a functionally similar Beacon within thirty (30) business days or, if Gimbal determines that it is unable to repair or replace the Beacon, Gimbal will refund the amount paid for the Beacon. No warranty is provided for a Beacon where the Beacon (i) price was waived, (ii) has been subjected to misuse, neglect, accident, or improper storage or installation, or (iii) has been repaired, modified, painted, labeled, marked, or altered, by anyone other than Gimbal.
10.3 Customer must promptly notify Gimbal in writing of a warranty claim. Provided that such claim is reasonably determined by Gimbal to be Gimbal’s responsibility, Gimbal shall, within thirty (30) days of its receipt of Customer’s written notice, (i) correct the issue or provide a workaround; (ii) provide Customer with a plan reasonably acceptable to Customer for correcting the issue; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Gimbal at Gimbal’s discretion, then Gimbal may terminate the affected Subscription and Customer will be entitled to a refund of the unused Fees paid for the affected product applicable to the balance of the then-current Subscription Term. This paragraph sets forth Customer’s sole and exclusive remedy and Gimbal’s entire liability for any breach of warranty or other duty related to the Solution.
10.4 This warranty is void and Gimbal is not obligated to provide technical support as described in Exhibit A if a claimed breach of the warranty is caused by: (i) any unauthorized modification of the Solution or tampering with the Solution, (ii) use of the Solution inconsistent with the accompanying Documentation, (iii) Customer’s failure to use any new or corrected versions of the Solution made available by Gimbal, or (iv) breach of this Agreement by Customer or its contractors, developers, or third-parties.
10.5 THE WARRANTIES IN THIS SECTION 10 ARE IN LIEU OF ALL OTHER WARRANTIES AND GIMBAL, ITS LICENSORS, AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE SOLUTION, THE PREMIUM GEOFENCES, AND THE SERVICES PROVIDED UNDER THIS AGREEMENT.
11. Limitation of Liability.
NEITHER PARTY, ITS AFFILIATES, LICENSORS, OR RESELLERS WILL BE LIABLE FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF GOODWILL, OPPORTUNITY, OR REVENUE; (IV) ANY INDIRECT OR CONSEQUENTIAL DAMAGES (EXCEPT FOR A BREACH OF SECTION 8 “CONFIDENTIALITY”); OR (V) SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER FORESEEABLE OR UNFORESEEABLE EVEN IF ADVISED OF THE POSSIBILITY. EXCEPT FOR CUSTOMER’S BREACH OF SECTION 2 (“RIGHT TO USE AND LICENSE GRANT”) OR SECTION 4 (“CUSTOMER OBLIGATIONS”) OR GIMBAL’S OBLIGATIONS IN SECTION 12 (“INDEMNIFICATION”), IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO GIMBAL FOR THE APPLICABLE SOLUTION OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT CAUSING LIABILITY.
12. Gimbal’s Indemnification.
In the event of a third-party claim, suit or proceeding against Customer asserting that use of the Solution as permitted in this Agreement infringes a third-party’s patent, copyright, or trademark right recognized in any jurisdiction where the Solution is authorized to be used, Gimbal, at its expense, will defend and indemnify Customer against costs, expenses (including reasonable attorneys’ fees), and damages payable to a third party in any such suit or cause of action that are directly related to that claim. Gimbal’s obligation under this Section is contingent upon Customer providing Gimbal with: (a) prompt written notice of the suit or claim; (b) the right to solely control and direct the defense of the claim; and (c) reasonable cooperation with Gimbal. Gimbal will have no liability for any claim of infringement resulting from: (i) unauthorized modification of the Solution by anyone other than Gimbal; (ii) a combination of the Solution with other hardware, services, or software not provided by Gimbal; or (iii) failure by Customer to implement Software Updates. In the event the Solution, in Gimbal’s opinion, might become the subject of a claim of infringement, Gimbal may at its sole option and expense: (a) modify the Solution to be non-infringing while preserving equivalent functionality; (b) obtain a license for Customer’s continued use of the Solution; or (c) terminate this Agreement, accept return of the Solution, and refund to Customer any unused Fees paid for the affected product applicable to the balance of the then-current Subscription Term. THIS SECTION SETS FORTH GIMBAL’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT BY THE SOLUTION.
13. Term and Termination.
13.1 This Agreement continues in full force and effect until the expiration or termination of the Subscription Term specified in an Order, unless otherwise terminated as provided in this Agreement. Upon expiration or termination of the Subscription Term, Customer’s right to use the Solution terminates.
13.2 Either party may terminate this Agreement if the other party fails to cure any breach within 30 days of being notified in writing of such breach or the other party ceases business operations. Upon notification of termination by either party, Customer must uninstall and delete any Software, stop using the Solution and certify in writing that all known copies thereof, including backup copies, have been uninstalled or deleted. For the avoidance of doubt, upon Termination of this Agreement, Customer is not entitled to a refund for any Beacon Fees paid. Sections 4, 6, 7, 8, 11, 12, 13, 14, 17, 18 shall survive the termination of this Agreement.
14. Compliance with Laws.
Each party will comply with all applicable laws and regulations, including those of other jurisdictions that may apply concerning the protection of personal data and anti-bribery. Neither party will use any data obtained via the Solution for any unlawful purpose.
15. Government Restricted Rights. The Solution is provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR 52.227-14 and DFAR 252.227-7013 et seq. or its successor. Use of the Solution by the U.S. Government constitutes acknowledgment of Gimbal’s proprietary rights therein. Contractor or Manufacturer is Gimbal.
The Solution is subject to export controls of the United States and other countries (“Export Controls”). Export or diversion contrary to U.S. law is prohibited. U.S. law prohibits export or re-export of the software or technology to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). Customer represents and warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the Solution or technology for any Prohibited Uses; and that it will comply with Export Controls.
Upon Gimbal’s request, Customer will document and certify that use of the Solution is in full conformity with the rights granted under this Agreement and the applicable Order. During the term of this Agreement and for a period of one year following its termination, Customer will maintain and make available to Gimbal records sufficient to permit Gimbal or Gimbal’s independent auditor to verify, upon ten (10) business days written notice, Customer’s compliance with this Agreement. Customer will provide reasonable assistance, personnel, access to Customer’s systems, and information necessary to facilitate the timely completion of Gimbal’s compliance verification. The audit will be performed during regular business hours. If Customer is not in compliance with this Agreement, Customer will reimburse Gimbal’s reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor), and Customer will promptly cure any noncompliance. Customer acknowledges that the Solution may include a license manager component to track usage of the Solution and agrees not to impede, disable or otherwise undermine such license manager’s operation.
As reasonably requested by Gimbal, Customer must provide to Gimbal written usage reports no later than the 30th day after the last day of each month for the preceding month.
For the purposes of customer service, technical support, and as a means of facilitating interactions with its customers, Gimbal may periodically send Customer messages of an informational or advertising nature via email, and provide account information to related third-parties. Customer may choose to “opt-out” of receiving these messages or information sharing by clicking on the opt-out link. Customer acknowledges and agrees that by “opting out” it will not receive emails containing messages concerning upgrades and enhancements to the Solution. However, Gimbal may still send emails of a technical nature, including technical support. Gimbal may use Customer’s company name or logo only in a general list of Gimbal customers. Gimbal owns any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Customer relating to the Solution. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, as appropriate, or (iii) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid. Notices sent to Gimbal must be sent to the attention of the General Counsel at 1320 E. 7th Street, Suite 200, Los Angeles, CA 90021. Notices are considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail as set forth above, or one (1) day after delivery to an overnight air courier service. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this paragraph. Any dispute arising out of or relating to this Agreement or breach will be governed by the federal laws of the United States and the laws of the State of California, USA, for all claims arising in or related to the United States, Canada, or Mexico; the laws of England and Wales for all other claims, without regard to or application of choice of laws, rules or principles. Both parties hereby consent to the exclusive jurisdiction of: (1) the state and federal courts in Los Angeles, California, USA, for all claims arising in or related to the United States, Canada or Mexico; (2) the competent courts in England and Wales for all other claims, provided however that Gimbal may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control. This Agreement and associated Order is the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement or Order. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties. All pre-printed or standard terms on any Customer purchase order or other business processing document have no effect and the terms and conditions of this Agreement will prevail over such forms, and any additional, inconsistent, conflicting, or different terms in such forms are of no force or effect. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will be interpreted so as reasonably to affect the intention of the parties. Each party is responsible for the compliance with this Agreement of its employees, contractors, developers, and third parties acting on a party’s behalf.
Technical Support Agreement
This Gimbal Technical Support Agreement (“Support Agreement”) is made subject to and shall be governed by the terms of the Agreement to which is it is attached. All capitalized terms used herein shall have the definitions given to them below, or, if not defined below, the definitions given to them in the Agreement. In the event of a conflict or, in the event a term is not defined herein, the terms as set forth in the Agreement shall prevail.
1. Definitions used in this Support Agreement.
“End User Support” means the support provided by or on behalf of Customer’s support staff as the initial point of contact for questions and issues as well as any and all internal escalation to handle issues reported by End Users, other Customer staff and Customer’s contractors.
“Gimbal Support” means the verbal and written (e.g. email, web ticket system) support provided by or on behalf of Gimbal support staff in the English language to Customer based on the Support Tier purchased. Gimbal Support serves as an escalated point of contact for questions and issues that Customer’s Support staff is unable to resolve. Gimbal does not provide support to Customer’s End Users, customers, contractors or staff that are not part of their End User Support organization.
“Issue” means an issue as reported by End User Support that is claimed to cause either unavailability or degradation of functionality of the Solution Manager or SDK and which Gimbal is able to reproduce or confirm from logs or the description provided. “Issues” do not include any failures or problems caused by End User devices or applications, content, or other materials distributed by or on behalf of the Customer. For the avoidance of doubt, “degradation” means the Solution Manager is slow or intermittent but still available.
“Issue Correction” means i) a modification of, ii) addition to, or iii) replacement of the SDK or Solution Manager that, addresses the Issue.
“Severity” means the designated severity level of an Issue, as more particularly described in the tables set forth later in this Support Agreement.
“Support Fee” means the fee or charges which Customer agrees to pay for Gimbal Support.
“Support Tier” means the level of Gimbal Support purchased by Customer, as more particularly described in the Gimbal Support Tiers table set forth later in this Support Agreement. (i.e., Standard, Premier or Premier Plus).
“Update” means modifications, bug fixes, updates, or hot-fixes to the Software, but excludes new features or functionality for which Gimbal may charge a separate fee.
2. Gimbal Support Tiers
While several different Gimbal Support Tiers are referenced below, only the specific Support Tier selected by Customer in an Order shall apply. Customer may upgrade to a higher Support Tier at any time by paying the higher Support Fee retroactive to the first day of the current calendar month and by committing to those ongoing Support Fees at the higher tier for the duration of their Subscription term. For the avoidance of doubt, the Standard Support Tier is included with payment of any Subscription Fees.
|Gimbal Support Tiers|
|Features||Starter||Bootstrap, Pro and Growth Plans1*||Enterprise (not-included)|
|24/7/365 automated monitoring by Gimbal of all critical Solution Manager components with automatic, multi-tier escalation directly to Gimbal Support staff who work to troubleshoot and resolve the issue.||Yes||Yes||Yes|
|Online access to Gimbal standard support resources including overviews, quick-start guides, sample applications, developer guides, API references, manuals, knowledge base articles, and community forum.||Yes||Yes||Yes|
|Response Times: Gimbal Support staff’s initial target response time by ticket Severity level 2*||5 business days 3*||2 business days 3*||Severity 1: 1 hour 4*
Severity 2: 2 hours 4*
Severity 3: 4 hours 4*
Severity 4: 8 hours 4*
|Access to Gimbal Support’s support staff via telephone||9am-5pm Mon – Fri Pacific time, excluding Gimbal holidays|
|Premier developer support for assistance with developer’s application development process and integration of the Gimbal SDK and/or APIs||Yes|
|Access to Premier support whitepapers, use case ideas, and installation and configuration materials||Yes|
|Assigned Gimbal Customer Success Manager 5*||Yes|
|Access to Gimbal Customer Engineering for support 5*||Yes|
|Access to external Solution Manager monitoring endpoints to allow Customer monitoring of Gimbal||Yes|
|Gimbal professional services, site surveys, beacon installation and training and other consulting services||Contact your Gimbal Sales representative for additional information on how we can tailor a custom solution to meet your specific needs.|
*1. Please refer to the Fee Schedule for further details on the pricing tier
*2. Severity level definitions:
• Severity 1: Critical – A complete loss or severe degradation of the Solution Manager that results in an outage
• Severity 2: High – A partial loss or degradation of the Solution Manager that results in an outage
• Severity 3: Medium – A not critical system performance issue or bug
• Severity 4: Low – Inquiries about routine technical or general issues; information requests on Solution capabilities
*3. Business days are Monday through Friday, excluding Gimbal holidays. This response time is typical but not guaranteed
*4. Premier Support of Severity 1 and 2, as well as all Severity 3 and 4 issue target response times are during Gimbal business hours only (i.e. 9am-5pm Monday – Friday Pacific time) and exclude weekends and Gimbal holidays
*5. Assignment of a Customer Success representative and access to Customer Engineering requires a minimum Subscription Fee of $5,000 USD/month
3. Process for issues.
If Customer’s End User Support believes that an issue exists with respect to the Solution Manager, the following steps must be followed:
a. Customer Troubleshooting. Prior to contacting Gimbal Support, Customer’s End User Support staff must investigate, diagnose, isolate and reproduce the issue and, where applicable, provide all support to End Users to address and resolve or otherwise mitigate the issue.
b. Notification of issue. If End User Support is unable to adequately address and resolve the issue, then Customer will notify Gimbal Support of the issue and include with such notice a detailed description of the nature of the issue including, as applicable:
ii. Logs from Software
iii. Device logs when available (e.g., Logcat on Android)
iv. Nature of the observed Issue: force close, crash, exception, time out, etc.
v. Context of the issue: “End user was doing this…”, etc.
vi. Ability to reproduce the issue
vii. Number & interval of issue occurrences
c. Gimbal Response to issues. Gimbal Support will use commercially reasonable efforts to respond to each reported issue within the response times listed in the Support Tier table above based on the Support Tier level selected by Customer.
d. Assignment of Severity Level. Upon confirmation by Gimbal Support that an Issue exists, Gimbal Support will assign the Issue a specific Severity based on the definitions in the Support Tier table above and will inform Customer of such assignment. If Customer disagrees with the Severity assigned, then the parties will work together in good faith to mutually agree on the Severity level.
e. Escalation. If Gimbal confirms that a Severity 1 (Critical) Issue exists and determines that an Issue Correction cannot be made within 4 hours of such determination, then Gimbal Support shall immediately notify Gimbal management. In such event, Gimbal will continue to use commercially reasonable efforts to provide an Issue Correction during such escalation.
f. Additional End User Support. Customer’s End User Support staff shall provide Gimbal Support, at the time of the notification and on an ongoing basis until Issue Correction, as applicable, such information, data, and assistance as is required by Gimbal Support to analyze, reproduce and resolve all Issues.
4. Issue Corrections and Software Updates.
a. Issue Correction. At such time as Gimbal Support confirms that an Issue exists, Gimbal Support will use commercially reasonable efforts to provide Customer an Issue Correction in accordance with the standards set forth in this Support Agreement. The foregoing shall be Gimbal’s sole obligation with respect to Issues or other faults within the Solution. Actual Issue Correction time will depend on the nature of the case and the type of Issue Correction provided as per Gimbal’s reasonable determination. While Gimbal acknowledges that Customer’s schedules for updating their Applications and software may be beyond their direct control, for the avoidance of doubt, Issue Correction provided by Gimbal Support in any Support Tier may be provided in the form of a new version of the SDK and in such case, can only be provided for the current version or versions of the SDK released within the 90 days immediately prior to the notification by End User Support to Gimbal Support of said Issue. Gimbal shall have no obligation to provide Issue Correction to Customer for SDK versions older than 90 days except in the case that the then-current version of the SDK is older than 90 days
b. Updates. From time to time, Gimbal may make Updates available. Gimbal reserves the right to condition Customer’s access to certain new features or functionality on the execution of an amendment to the Agreement, which amendment shall include Gimbal’s fees for such additional features or functionality.
c. Deployment and Testing. If an Issue Correction entails a new version of the SDK which has been provided to Customer, it is Customer’s responsibility to have all Application End Users upgrade their Application, as applicable. If an Issue Correction is made available by Gimbal Support and it is not or cannot be implemented, tested, or verified for any reason which is not the fault of Gimbal, (including without limitation as a result of Customer’s failure to provide English-speaking support contacts), Gimbal shall not be held responsible for such lack of implementation, testing or verification.
Gimbal has no obligation with respect to any Issue that arises from or is related to (i) the modification, addition, configuration or enhancement made to any component of the Solution by Customer or any third person or entity other than Gimbal unless expressly permitted under this Agreement or in the event that Customer or such third person or entity is expressly authorized or instructed to do so by Gimbal, (ii) the operation, or failure to operate of any software program, hardware, firmware, peripheral, network (including but not limited to the Internet), communication device or service used in connection with the Solution which is not supplied by Gimbal, (iii) Customer’s failure to follow the applicable instructions delivered in writing from time to time by Gimbal where the Issue would not have occurred but for such failure, (iv) Customer’s failure to implement in a timely manner any relevant Issue Correction that is made available to Customer by Gimbal Support in response to an Issue, or (v) the negligence, abuse, or misuse of the Solution by Customer or any other third party or entity not authorized or approved by Gimbal.
6. Scheduled Maintenance and Downtime.
a. Scheduled Maintenance. Gimbal may schedule regular Solution Manager maintenance (“Scheduled Maintenance”) every other Tuesday between the hours of 6PM – 9PM Pacific Time. This Scheduled Maintenance usually requires the manager admin interface (https://manager.infillion.wpengine.com/) and corresponding manager APIs to be unavailable but it is not intended to impact availability of the rest of the Solution Manager and access to it from the SDK (e.g. an End User Application is not impacted)
b. Scheduled Downtime. Gimbal may schedule regular Solution Manager downtime (“Scheduled Downtime”) every other Tuesday between the hours of 9PM – 1AM (Wednesday) Pacific Time. This scheduled downtime will impact overall Solution Manager availability and is necessary to keep the overall Solution operating within specification. Gimbal will provide reasonable notification in advance of any Scheduled Downtime.
Effective Date: May 25, 2018