Terms & Conditions Of Sale
Download Terms as PDFTb-Terms-Conditions
This is an agreement between you (the Client) and us (TriBuild Inc), a Delaware Corporation. It describes the Products, Software and Services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them.
By using any Services, Product, Software, Consulting, or Training that we provide, you are agreeing to these terms.
No waiver, modification, or addition to these Terms, or any assignment of your rights or obligations under them is valid or binding on us unless we provide it in writing and it is signed by our authorized representative.
1.1. “Agreement” means these Client Terms & Conditions of Sale and is a contract, it also includes all materials referred or linked to in here.
1.2. “Billing Period” means the period for which you agree to prepay fees upon accepting a Quote or under an accepted Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
1.3. “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that, where permitted by law, the receiving party will promptly
inform the providing party of any such requirement in advance and cooperate with any attempt to procure a protective order or similar treatment.
1.4. “Client” means the legal entity or individual that enters into this Agreement as described on Quote or Order Form.
1.5. “Client Content” means all information that you submit or collect via the
1.6. “Intellectual Property Rights” means any intangible property right provided by law, including but not limited to (i) trademark, and service mark rights, (ii) copyrights, (iii) patent rights, and (iv) trade secret rights.
1.7. “Order” or “Order Form” means the TriBuild approved form or online
subscription process by which you agree to purchase Products, Software, and Services, and/or to the Subscription of Software. This will be taken in the form of your acceptance online of a Quote by agreeing to these Terms and Conditions when presented, or the submission to us of your official order whether by numbered purchase order, email, or other notification of intent.
1.8. “Perpetual License” means all our Software products sold on a one-time
license fee arrangement as described in our Quote or in an accepted Order
form. Additional ongoing support and maintenance fees may be applicable as described in our Quote or in an accepted Order form.
1.9. “Products” means hardware products provided by us, whether manufactured by us or a third party.
1.10. “Service Agreements” are service contracts such as for support &
maintenance or professional services, “Statements of Work,” and any other
such mutually agreed upon documents. These Terms do not apply to Service
Agreements which have their own terms and conditions.
1.11. “Services” means any services provided by TriBuild as described in this agreement or in one or more Service Agreements, or in your Quote or Order that we have accepted, and may include but is not limited to Subscription Software, training, support, consulting, and system setup.
1.12. “Software” means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us or our suppliers or other third parties to you.
Software includes Product firmware, Software locally installed on your systems and Software accessed by you through the Internet or other remote means (such as websites, portals, software-as-a-service (“SaaS”) and “cloud-based” solutions).
1.13. “Subscription Service” means all our Software products sold on a
subscription whether delivered via the web or installed locally and controlled by time limited user licensing, and other tools and platforms that you have subscribed to in our Quote or in an accepted Order form, whether monthly, annually or other frequency.
1.14. “Subscription Term” means the initial term of your subscription to the
applicable Subscription Service, as specified on your acceptance of a Quote or our acceptance of an Order Form, and each subsequent renewal term (if any).
1.15. “TriBuild” means TriBuild Inc, a registered Delaware company based at 1434 Spruce Street, Suite 100, Boulder Colorado 80302.
1.16. “Quote” or “Quotation” is our document detailing to you the proposed
Products, Software, and Services that you have requested we price for you.
The Quote maybe provided in a formal Quotation document or another
electronic form such as email, but is only valid if it comes from an authorized TriBuild employee.
2. Quotes and Orders.
2.1.Our Quotations are non-binding on us unless otherwise expressly stipulated in writing. An Order is accepted as valid and binding only when confirmed by us in writing. Accepted Orders cannot be canceled for any reason without our written consent.
2.2.All Orders must include the following information: (i) the Products and Software ordered and quantities, (ii) TriBuild part number(s), (iii) prices, and (iv) delivery address and instructions.
3. Product Delivery.
3.1.Delivery time: When ordering Products, we will establish estimated delivery times when we accept your Order. We will use commercially reasonable best efforts to meet your requested delivery dates, but are not liable for late or delayed delivery. Late delivery is not a basis for your cancellation of any order.
3.2. Delivery terms:
3.2.1. Title and risk of loss or damage to Products passes to you when we
deliver the Products to the shipping provider (“Delivery”).
3.2.2. Unless otherwise agreed in writing, we will deliver the Product freight
prepaid, provided that you pay or reimburse us for all applicable costs of
carriage, freight, insurance (if applicable), taxes, duty and other related shipping charges.
3.2.3. We have the right to make partial deliveries.
3.2.4. Software may be delivered electronically at our option. Title to the
Software will remain with TriBuild or its licensors.
4. Product Acceptance, Inspection, Notification, and Return
4.1.We will deliver the Products to your premises as identified in the Order Form.
The Products shall be deemed to have been delivered in good working order and in accordance with this Agreement unless you notify us to the contrary within three (3) business days of delivery.
4.2.If we accept the notification of a nonconforming delivery according to the Order, we will arrange to make good the Order within ten (10) business days.
4.3.If you cancel an accepted Product Order within 10 days prior to shipment or reject conforming Products received under an accepted Order, we are entitled to claim reasonable compensation for restocking and other expenses actually incurred.
4.4.All Product returns are subject to our prior written consent. You are responsible for risk of loss, effective packaging to protect Products, and the cost of freight when you return to us. When a return is approved by us, you will receive credit equal to the lesser of the Product’s invoice price or its current replacement value, less any applicable charges or fees.
5. Pricing, Terms of Payment, Taxes.
5.1.Our payment terms are 30 days net from invoice date unless we state otherwise in writing. You will make payment in the currency indicated on the invoice. We are entitled to offset your payments against any prior debt balances that may be in your account.
5.2.Where we extend you credit, we maintain the continuing right to review your accounts credit and change your payment terms, and may at any time demand advance payment, satisfactory security (such as, but not limited to, a confirmed, irrevocable letter of credit acceptable to us), or a guarantee of
prompt payment prior to shipment or service activation.
5.3.We reserve the right to charge interest on all overdue sums owing to us under this Agreement at the rate of 1.5% per month (or the highest legal limit if lower than said amount), accrued daily from the due date until the payment date.
5.4.You are liable for any costs incurred by us if you change or cancel any order, and for all costs of collection of past due amounts (including any debt collection services or attorneys fees).
5.5.Our Quoted prices for Products and Software do not include applicable sales taxes, Value Added Tax, export or import charges, transportation or insurance charges, customs and duty fees, personal property taxes or similar charges, which you may be liable to pay. Unless you provide us with direct payment authority or an exemption certificate valid in the jurisdiction to which the Product will be delivered, you shall pay us all taxes and governmental fees we are required to collect or pay upon sale or delivery of the Product.
6. Limited Warranty.
6.1.Products and Software: TriBuild warrants to you, and only you as the Client under this Agreement, that (a) the products are to be free from defects in materials and workmanship for the period as specified and disclosed for each product by the manufacturer of those products, provided that you have handled the products with utmost care and have followed proper maintenance and application procedures, and (b) that supplied Software will substantially conform to the functional specifications and current documentation provided for the period specified and disclosed for each product by the creator of those products
6.2.During the warranty period, our liability and your exclusive remedy is limited, at our option, to replacing, repairing, correcting, or issuing credit for any Product or Software subject to the warranty in Section 7.1, which upon inspection we determine is non-conforming.
6.3.Effectiveness of Warranty: This warranty shall only be in effective in the event that you are fully in compliance with your terms of trade with us, and where you have met all your required payments required under our terms of payment.
6.4.Warranty Exclusions: The foregoing limited warranty only applies if and to the extent that (a) the Product or Software is properly and correctly installed, configured, interfaced, maintained, stored, and operated in accordance with our applicable documentation and specifications, and (b) the Product or Software is not modified or misused. This limited warranty does not apply to, and we are not responsible for defects or performance problems resulting from (i) the combination or use of the Product or Software with hardware or software products, information, data, systems, interfaces or devices not supplied by us with the express purpose of operating together; (ii) operating the Product or Software under any specification other than, or in addition to, our standard specifications for them; (iii) the unauthorized installation, modification, repair or use of the Product or Software; (iv) damage caused by accident, lightning or other electrical discharge, fresh or salt water immersion or spray (outside Product specifications); or exposure to environmental conditions for which the Product or Software is not intended; (v) normal wear and tear on consumable parts (e.g., batteries) or (vi) cosmetic damage. We do not warrant or guarantee the results obtained through the use of the Product or Software.
6.5.Your use of certain Products and Software is dependent on the availability and coverage of wireless networks, telecommunications networks, satellite positioning systems and the Internet, which involve facilities owned and operated by third parties. We are not responsible for the availability, performance, or failure of these networks and systems or the results of operating failures of these networks and systems.
6.6.Limitation of Liability: Our entire liability for any and all claims arising out of or in connection with the Products, Software, and Services in relation to these terms is strictly limited to the amounts actually paid to us.
7. Software Licenses.
8. Ownership and Payments.
8.1.Software Ownership. You agree that TriBuild, or it’s third party supplier, owns
all right, title and interest in all Intellectual Property Rights therein including
software and other proprietary rights to documents and materials, calculations,
drawings, models, plans, sets of tools, technology, workflows, designs,
engineering details, schematics and similar data relating to or incorporated in the Products and Software. Title to and ownership of any modifications,
upgrades, updates or customizations of the Product or Software shall be held exclusively by TriBuild or it’s third party supplier. In addition, you grant TriBuild the right and license to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit error reports, corrections, and suggestions provided by you concerning the Product or Software and modifications based thereon or incorporated therein, which may include new functional features.
8.2.Subscription payments must be made in advance to cover the next Billing Period.
8.3.Updates/Upgrades. You agree that TriBuild, or it’s third party supplier, may update, upgrade or modify the Software, at any time, including the removal or modification of previously available functionality. Subject to the foregoing, unless separately identified as having additional terms, any updates, upgrades, enhancements and/or modifications provided to you by us will automatically be considered part of the Software and will be subject to the terms of this Agreement.
8.4.Client Content. All Client Content is and shall remain your property or that of an applicable third party. You grant to us a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Client Content for the Term of this Agreement solely in connection with its provision of the Services.
8.5.Product Ownership. We retain all right, title and interest in the Products until such time as the purchase price for Products has been paid in full and received by us, but risk for the Products shall transfer to you upon delivery.
9. Software Subscription Term, Renewal, Cancellation
9.1.Term and renewal. Your initial subscription period will be specified in your Quote or Order, and your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, you must notify us in writing no less than 45 prior to the end of your term to cancel your subscription. If you add products during the Subscription Term, the fees for these additional products will be pro-rated and they will renew along with your subscription, unless otherwise indicated in your Order.
9.2.The renewal pricing set forth in your Quote or Order will apply. If renewal pricing is not included in your Order, then our standard pricing available on the date of renewal will apply.
9.3. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the subscription during your
10.1. Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Delaware and applicable US federal law. Except as provided in an arbitration clause if any, the state and federal courts located closest to Boulder, Colorado will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
10.2. No dispute or legal action arising under these Terms, may be brought by either party more than one (1) year after such cause of action accrued, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
10.3. Notice. We may give notice by means of electronic mail to your email
address on record or by written communication sent by first class mail or by courier service to your address on record. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. You may give notice to TriBuild by e-mail to firstname.lastname@example.org. Such notice will be deemed to have been given 12 hours after sending, or, if earlier, when received. A party may, by giving notice, change its applicable address, email, or other contact information.
10.4. Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
10.5. No Agency. No joint venture, partnership, employment, or agency
relationship exists between you and TriBuild as a result of this Agreement or use of any Service.
10.6. No Waiver. The failure of TriBuild to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless
acknowledged and agreed to by us in writing.
10.7. Compliance with Export Laws. Each party shall comply with the export
laws and regulations of the United States and other applicable jurisdictions in providing and using the Software and Products. Without limiting the foregoing, you warrant and represents that you are not named on any U.S. government list of persons or entities prohibited from receiving exports, and you shall not use, export or re-export the Software in violation of any U.S. export embargo, prohibition or restriction.
10.8. Force Majeure. Except for the payment by you to us, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
10.9. Assignment. Except for an assignment to a parent or subsidiary, this Agreement may not be assigned by either party without the prior written approval of the non-assigning party, provided that TriBuild may assign this agreement to (i) an affiliate of TriBuild, (ii) an acquirer of all or substantially all of TriBuild’s assets involved in the operations relevant to this Agreement; or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
10.10. Default. We reserve the right by written notice of default to cancel or
indefinitely suspend an accepted order and to refuse additional orders if: (i) you default in performing your obligations under these Terms, (ii) you cease business operations or enter into any bankruptcy, insolvency, receivership or like proceeding not dismissed within 30 days, or assign your assets for the benefit of creditors, or (iii) when obtaining third-party financing in connection with your Product purchase(s) you fail to do so in a timely manner on terms satisfactory to us.
10.11. Online Privacy. We take your privacy seriously, and you may find our
Privacy Statement published at http://www.TriBuildinc.com/legal/privacy
10.12. Entire Agreement. This Agreement, together with any applicable Service Agreements, comprises the entire agreement between you and TriBuild and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.
By submitting an Order Form, or clicking the “I Agree” button for this Quote, as applicable, you agree to the Terms of this Agreement.