Tomitribe Support and 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 SUPPORT AND 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 Support and Subscription Services (as defined herein) (collectively, the “Services”) to Customer per the terms of this Agreement (the “Agreement”), the End User License Agreement (“EULA“) and Customer Order (defined below). In the event of any conflict between this Agreement, Customer Order and the EULA, the terms of the EULA 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 Hardware, and Services Level will be set forth on the applicable 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”).
- “Error” means a failure in the Software to materially conform to the specifications that Tomitribe has agreed to deliver, as described in the applicable product documentation (“Documentation”).
- “Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by Tomitribe for production deployment or use. Modified Code excludes customizable Software options for which Tomitribe offers Services.
- “Services Fees” means the fees for Services specified in a corresponding Tomitribe or reseller invoice.
- “Services Period” means the period for which Customer has purchased the Services and any subsequent renewal periods and shall commence for Software Licenses for which Services are optional, on the date of purchase of the Services.
- “Severity” is a measure of the relative impact an Error has on the use of the Software, as determined by Tomitribe, and only applies toward production support.
- “Software” means software offered by Tomitribe, and all components shipped with the Software, including Open Source components.
- “Subscription Services” means the provision of Maintenance Releases, Minor Releases and Major Releases (each defined below), if any, to the Software, as well as corresponding Documentation, to Customer.
- “Maintenance Release” or “Update” means a generally available release of the Software that typically provides maintenance corrections or fixes only, designated by Tomitribe by means of a change in the digit to the right of the second decimal point (e.g. Software 5.0 >> Software 5.0.1).
- “Minor Release” means a generally available release of the Software that (i) introduces a limited amount of new features and functionality, and (ii) is designated by Tomitribe by means of a change in the digit to the right of the decimal point (e.g., Software 5.0 >> Software 5.1).
- “Major Release,” also known as an “Version Upgrade,” means a generally available release of the Software that (i) contains functional enhancements or extensions, and (ii) is designated by Tomitribe by means of a change in the digit to the left of the first decimal point (e.g., Software 5.0 >> Software 6.0).
- “Technical Support” means the provision of telephone or web-based technical assistance by Tomitribe to Customer’s technical contact(s) with respect to installation and Errors, at the corresponding Services level purchased by Customer.
- “Third Party Products” means any software or hardware that (i) is manufactured by a party other than Tomitribe and (ii) has not been incorporated into the Software.
- Support Deliverables.
- Tomitribe Software Support. Specifications and features.
|License to use and copy software product updates||Customer receives the license to use and copy the software product updates to the same extent as granted by the original software license.The license terms shall be as described in the Tomitribe software licensing terms corresponding to Customer prerequisite underlying software license, including any additional software licensing terms that may accompany such software Updates provided under this support offering.|
|Software product and documentation updates||As Tomitribe releases updates to certain select Tomitribe software, the latest revisions of the software and reference manuals are made available to Customer system manager. For certain products, Customer may be able to select from a choice of media types. Through this service offering, an access code, license key or instructions for obtaining an access code or license key is also provided to Customer when required to install or run the latest software revision.|
|Online software support||Tomitribe provides unlimited access to an electronic facility that includes a knowledge database with known symptoms and solutions, software product descriptions, specifications and technical literature.Tomitribe may also make available certain software patches for Tomitribe software, which will be posted in this electronic facility for Customer to access.|
|Access to technical resources||Customer can access our technical resources via Software Support Online, email or telephone (where locally available and with a valid Professional or Enterprise support plan) for assistance in resolving software or operations problems.|
|Problem analysis and resolution||Tomitribe provides corrective support to resolve identifiable and Authorized User-reproducible software product problems. We also provide support to help Customer identify problems difficult to reproduce. Customer receives assistance in troubleshooting problems and solving configuration parameters.|
|Remote Access||At our option and with Customer approval, we may use selected remote access tools, such as a telephone support tool, to facilitate problem solving. The use of these tools allows us to work interactively with Customer organization and to diagnose remotely Customer problem.Customer can choose to use any of the selected tools to assist in the resolution of support requests. Only Tomitribe provided/approved tools are to be used as a part of this feature.|
|Escalation management||Tomitribe has established formal escalation procedures to solve complex software problems. Local Tomitribe management coordinates problem escalation, rapidly enlisting the skills of key problem solving experts throughout Tomitribe and with select third parties.|
|Software features and operational support||Tomitribe provides information on the latest product features, known problems and available solutions, and operational advice and assistance.|
|Installation advisory support||Should Customer encounter difficulties while performing a product installation, we provide advisory support. This includes advice on proper installation methods and updating of stand-alone applications as well as support for products installed in a network environment.This support feature does not include downloading of complete software packages or walking Customer through an installation, advanced configuration, or performance tuning from start to finish. These services are available to Customer for an additional charge and can be purchased separately from Tomitribe.The terms of Development Support Feature shall apply to installation advisory support.|
|Coverage window||The service coverage window specifies the time during which Customer calls may be logged.
Tomitribe Software Support.
General provisions and limitations
|General provisions||Distribution of certain third-party software updates, license agreements, and/or license keys may be made directly from the third-party vendor to Customer organization.|
|Limitations||Software updates are not included for all software products.|
|Non-Tomitribe software||Tomitribe will support specified Versions of selected non-Tomitribe software, but will not support the software any longer than the vendor supports it.|
|Standard response time||“Response Time” goals are provided as typical initial response times to support requests. Tomitribe will use commercially reasonable efforts to meet response time goals. Response time goals in no way create a legal requirement or obligation for Tomitribe to provide always such response in the stated time.|
|Security Levels||The following Severity levels apply to all Software:
“Severity One” – means Customer’s production server or other mission critical system(s) are down and no workaround is immediately available and (i) all or a substantial portion of Customer’s mission critical data is at a significant risk of loss or corruption; (ii) Customer has had a substantial loss of service; or (iii) Customer’s business operations have been severely disrupted.
“Severity Two” – means that major functionality is severely impaired such that (i) operations can continue in a restricted fashion, although long-term productivity might be adversely affected; (ii) a major milestone is at risk; ongoing and incremental installations are affected; or (iii) a temporary workaround is available.
“Severity Three” – means a partial, non-critical loss of functionality of the software such that: (i) the operation of some component(s) is impaired but allows the user to continue using the Software; or (ii) initial installation milestones are at minimal risk.
“Severity Four” – means general usage questions and cosmetic issues, including errors in the Documentation.
|Term Licenses||Access to Tomitribe Support Center for term license software may be limited to electronic.|
Tomitribe Support Plans.
- Development Support Features: Tomitribe Development Software Support provides software support to development environment (designated as non-production environment) and access to Tomitribe Support Team. Tomitribe Support Engineers work with Customer IT team to provide advice on software features and use, installation advisory, problem diagnosis and resolution, software defect identification and access to patches. Only two open support tickets are allowed at any given time during Software Support Term. Development Support is included with any Tomitribe Community Partnership Program Plan. Service Request Severity and Response terms and time do no apply.
- Professional Support Features: Tomitribe Professional Software Support provides software support and access to Tomitribe Support Team. Tomitribe Support Team engineers work with Customer IT team to provide advice on software features and use, problem diagnosis and resolution, software defect identification and access to patches. Enterprise Support is required for 24X7 Software Support.
- Enterprise Support Features: Tomitribe Enterprise Support offers a flexible package of proactive and enhanced reactive deliverables, managed by either a named Tomitribe Support Engineer (“TSE”) and/or a named TomEE Committer Developer (“TCD”) (with a valid Tomitribe Community Partnership Program plan) assigned to Customer account. A TSE is Customer assigned technical resource with an in-depth knowledge across select products. A TCD is Customer assigned alliance manager with a broad knowledge across the entire Tomitribe portfolio and a committer of the Apache TomEE Open Source project. Enterprise Support is included with any Tomitribe Community Partnership Program plan.
- Service Request – Severity, Service Level Agreement Terms, Response Time, and Service Time Table: The Tomitribe Support Engineer will assess the severity of the request based on Authorized User’s description of the problem and assign a severity level as described in the criteria table below. Tomitribe Support Team response and resolution objectives are described in the table below.
Enterprise Support Subscription
|Enterprise Support Subscription|
|Severity Level||Service Level Agreement Terms||Service Time||Response Time|
|Severity 1||Unlimited high priority telephone and email support.||7 x 24||One (1) Hour|
|Severity 2||Unlimited priority telephone and email support.||7 x 24||Two (2) Hours|
|Severity 3||Unlimited email support.||5 x 12||Four (4) Business Hours|
|Severity 4||Unlimited email support.||5 x 12||Eight (8) Business Hours|
Professional Support Subscription
|Professional Support Subscription|
|Severity Level||Service Level Agreement Terms||Service Time||Response Time|
|Severity 1||Unlimited high priority telephone and email support.||5 x 12||One (1) Business Hour|
|Severity 2||Unlimited priority telephone and email support.||5 x 12||Four (4) Business Hours|
|Severity 3||Unlimited email support.||5 x 8||One (1) Business Day|
|Severity 4||Unlimited email support.||5 x 8||Two (2) Business Days|
Subscription Technical Support Admin Contact.
Included with valid any Professional Support Subscription, Enterprise Support Subscription and any Tomitribe Community Partnership Program plan. Additional Support Named Admin Contact may be purchased for $1,000.00 USD per year.
|SUBSCRIPTION TECHNICAL SUPPORT NAMED ADMIN CONTACT|
|Subscription Core Count||Named Admin Contact|
|8 – 31||1|
|32 – 63||2|
|64 – 127||3|
|128 – 255||4|
|256 and over||5|
Telephone Support. Tomitribe provides telephone assistance to Customers with a valid Professional or Enterprise Service support plan for severity level 1 and 2 only. Assistance in the development of custom applications for Software and/or Support is not included in Telephone Support, rather through the purchase of Professional Services.
Provision of Services. Subject to the terms of this Agreement, Tomitribe shall, during the Services Period, provide Customer with Services at the applicable Services level purchased.
End of Availability. Tomitribe may, at its discretion, decide to retire Software and/or Services from time to time (“End of Availability”). Tomitribe shall post notice of End of Availability, including the last date of general commercial availability of the affected Software and the timeline for discontinuing Services, at https://www.tomitribe.com/legal/policies_lifecycle.html. Tomitribe shall have no obligation to provide Services for Software that is outside of the applicable Services life.
- Customer must purchase and/or renew Services at the same Services level for all of the Software in a given environment (e.g., Test, Development, QA, Certification and Production).
- Except as otherwise provided in the applicable price list, the minimum term for any Services offering is one (1) year.
- These Services Terms and Conditions will automatically update to Tomitribe’s then-current Services terms and conditions upon any renewal of Services.
- Services do not cover problems caused by the following:
- Accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of telecommunications, the Internet or other electronic communications; failure of rotation media not furnished by Tomitribe; operation of the Software with other media not in accordance with the manufacturer’s specifications; corruption, security loss, theft or alteration of data, spyware, viruses or security breach; or causes other than ordinary use;
- Improper installation by Customer or use of the Software that deviates from any operating procedures as specified in the Documentation;
- Third Party Products, other than the interface of the Software with the Third Party Products;
- Modified Code;
- Issues relating to Software offered as a Service (“SaaS”);
- Any customized deliverables created by Tomitribe specifically for Customer as part of consulting services; or
- Use of the Software with unsupported tools (e.g., Java Development Kit (JDK); Java Runtime Environment (JRE)), APIs, interfaces or data formats other than those included with the Software and supported as set forth in the Documentation; or
- Any issue not covered by Technical Support.
- Customer may request assistance from Tomitribe for such problems, for an additional fee. If Tomitribe suspects that a reported problem may be related to Modified Code, Tomitribe, may, in its sole discretion,
- Request that the Modified Code be removed, and/or
- Inform Customer that additional assistance may be obtained by Customer directly from various product discussion forums or by engaging Tomitribe’s consulting services or an additional fee.
Customer Responsibilities. Tomitribe’s obligations regarding Services are subject to the following:
- Customer agrees to receive from Tomitribe communications regarding Services via e-mail, telephone, and other formats (such as communications concerning support coverage, Errors or other technical issues and the availability of new releases of the Software).
- Customer’s technical contact shall cooperate to enable Tomitribe to deliver the Services.
- Customer is solely responsible for the use of the Software by its personnel and shall properly train its personnel in the use and application of the Software, and in all necessary or appropriate security protocols and procedures.
- Customer shall promptly report to Tomitribe all problems with the Software, and shall implement any corrective procedures provided by Tomitribe reasonably promptly upon receipt of such request.
- Customer is solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used, and should confirm that such data and information is secured from theft, alteration or intrusion, protected and backed up in accordance with any internal or regulatory requirements as applicable before contacting Tomitribe for Technical Support. Tomitribe is not responsible for lost data or information in the event of errors or other malfunction of the Software or computers on which the Software is used. Tomitribe is not responsible for losses arising out of or in any way related to computer security issues, including without limitation, those resulting from security breaches, spyware, hacking, and viruses.
- Customer will have dedicated resources available to work 24X7 on Severity One Errors.
Services Offerings and Fees.
- Services Fee Terms.
- Services Fees are payable on the Effective Date or, in the case of a renewal term, no later than the date of commencement of the applicable Services Period. Services Fees are non-refundable.
- If Customer renews or adds a Service offering that has a minimum term of one (1) year, Customer may elect to make Services for all or a portion of its Software licenses coterminous with the renewed or added Services. In such case, Tomitribe will prorate the applicable Services Fees to extend the current Services Period to make it coterminous with such renewed or added Services.
- For Software that is licensed on a perpetual basis, if a Customer purchases Services after acquiring the Software licenses, or had elected not to renew Services and later wishes to re-enroll in the Services, Customer must move to the then-current Major Release of the Software and must pay: (i) the applicable Services Fees for the current Services Period; (ii) the amount of Services Fees that would have been paid for the period of time that Customer had not enrolled in the Services (“True-up Fees”), and (iii) a fifteen-percent (15%) reinstatement fee on the sum of the Services Fees in (i) and (ii).
- In cases where Customer purchases a license to migrate up from one edition of the Software to another (e.g., Tomitribe Application Server to Tomitribe Application Server Plus), any unused period of the Services Period on the original license will be converted and used to extend the Services Period for the newly purchased upgraded license. This paragraph (d) shall not apply to enterprise license agreements.
- Advanced, Complimentary and Training Offerings.
- Tomitribe may offer complimentary Services, including Tomitribe Complimentary Update Services for certain Software, as more fully described at the Tomitribe Technical Support Services website. “Tomitribe Complimentary Update Services” means the provision of Maintenance Releases and Minor Releases, if any, to Customer. This Tomitribe Complimentary Update Service does not include the provision of any Major Releases. Tomitribe is under no obligation to offer, or to continue to offer, any complimentary services.
- Tomitribe may review service requests logged by your technical contacts, and may recommend specific training to help avoid service requests that would be prevented by such training. Training is subject to additional policies referenced hereto as Appendix 1. Contact [email protected] for training details and fees. Tomitribe is under no obligation to make any such review or recommendation, or to continue to make any such review or recommendations.
- Termination. Tomitribe may terminate this Agreement and all Services at any time if (1) it is discovered that Customer is currently in breach of its Software license restrictions, pursuant to Customer’s Software license or (2) Customer is in material breach of this Agreement.
- Data Protection. Customer acknowledges that correspondence and log files generated in conjunction with a request for Services may contain sensitive, confidential or personal information. Customer is solely responsible for taking the steps it considers necessary to protect such data, including obfuscating the logs or otherwise guarding such information prior to sending it to Tomitribe.
Tomitribe offers training for standard and custom Training course. Whether Customer purchases Training from us or though one of our authorized Business Partners, we agree to provide Customer with the Training on the terms described in this Appendix. In exchange, Customer agrees to comply with the requirements and terms of this Appendix. When Tomitribe uses a capitalized term in this Appendix without defining it, the term has the meaning defined in the base agreement.
Training. “Training” means Tomitribe’s training courses, including Tomitribe’s publicly available courses (“Available Course”) and courses provided at a site designated by Customer (“Custom Courses”).
- Equipment and Facilities. For Custom Courses, Customer will supply the facility and equipment as requested by Tomitribe. If Tomitribe agrees to provide the training facilities and hardware, Customer will be liable for any loss or destruction of this equipment and hardware used in connection with the Training.
- Customer Responsibilities. Customer is responsible for (a) assessing each participants’ suitability for the Training, (b) enrollment in the appropriate course(s) and (c) Customer participants’ attendance at scheduled courses.
- Rights to Training Materials. All intellectual property embodied in the training products, materials, methodologies, software and processes, provided in connection with the Training or developed during the performance of the Training (collectively, the “Training Materials”) are the sole property of Tomitribe or a Tomitribe Affiliate and are copyrighted by Tomitribe unless otherwise indicated. Training Materials are provided solely for the use of the participants and may not be copied or transferred without the prior written consent of Tomitribe. Training Materials are Tomitribe’s confidential and proprietary information.
- Delivery Date and Cancellation. Customer agrees to cancel no later than thirty (30) days prior to the start of training delivery date. Fees paid on any Courses that are cancelled within thirty (30) days of delivery date will not be refunded.
Payment. Notwithstanding other payment terms, payment for Training must be received in full prior to the delivery of the associated Training.