Gryphon Networks Corp. (d/b/a Gryphon.ai)
SUBSCRIPTION SERVICES AGREEMENT
APPLICABLE TO CUSTOMERS OF GRYPHON RESELLERS
Customer is acquiring a subscription to a Service operated by Gryphon Networks Corp. (“Gryphon” or “Gryphon.ai”) from an unrelated third party authorized to sell such subscription Services (“Reseller”) under a separate agreement with Gryphon (“Reseller Agreement”). In addition to any terms and conditions related to the Customer’s use of the Service pursuant to any agreement by and between Customer and the Reseller, this Agreement contains the terms and conditions that govern Customer’s access to and use of the Service. Gryphon is an express beneficiary of this Agreement, and in acquiring a subscription to the Service, Customer expressly acknowledges and agrees that Gryphon shall have the right to enforce this Agreement against Customer and that this Agreement constitutes the entire agreement and supersedes any and all prior agreements between Customer and Gryphon with regard to Customer’s subscription to the Service or Customer’s access to or use thereof under this Agreement.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Authorized User to access or use a Service, Customer agrees to be bound by this Agreement as of the date of such access or use of the Service (the “Effective Date”). If the Customer does not agree with this Agreement, Customer must not access, use, or authorize any use of the Services. Customer and Gryphon shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement.
Capitalized terms will have the meaning set forth herein.
Definitions.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control of the Customer. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting or equity interests of the subject entity.
“Agreement” means, collectively, these Terms and Conditions and the Order Form(s).
“Customer” or “End User Customer” means the individual or entity, including its Affiliates, executing an Order Form with Reseller.
“Customer Data” means all electronic data submitted by or on behalf of Customer to the Service.
“Documentation” means Gryphon’s written or electronic documentation, images, video, or text, including user guides and training material, specifying the functionality or limitations of the Services made available by Gryphon.
“Non-Gryphon Application” means a web-based, offline, mobile, or other software application functionality that is provided by Customer or a third party and interoperates with a Service.
“Order Form” or “Sales Order” means an ordering document executed by Customer and Reseller and governed by this Agreement, which details the Services being purchased by Customer, including the number of Authorized Users being provided access to use such Services. An Order may also be referred to as a “Sales Order” or “Schedule.”
“Privacy Policy” means Gryphon’s Privacy Policy located at https://gryphon.ai/privacy-policy/.
“Reseller” means the entity authorized by Gryphon to sell its subscription Services to End User Customers.
“Service(s)” means Gryphon’s products and services purchased by Customer pursuant to an Order Form with Reseller.
“Service-Specific Terms” means the Supplemental Terms applicable to the use of the Services.
“Support Services and Service Level Schedule” means both the services Gryphon will perform to support the Services Customer has engaged Gryphon to provide as well as the applicable availability and response time service levels Gryphon will maintain throughout the Term as specified in Exhibit A.
“Supplemental Terms” means the additional terms and conditions that are (a) included or incorporated on an Order Form or other reference to the Services and (b) subject to Gryphon’s Service-Specific Terms.
“Term” or “Subscription Term” means the Term specified in the Order Form.
“Users” or “Authorized Users” means individuals who are authorized by Customer to use the Gryphon Service, for whom a subscription to the Service has been procured. Users may include, for example, Customer’s and Customer’s Affiliates’ employees, consultants, clients, external users, contractors, agents, and third parties with which Customer does business.
GENERAL TERMS AND CONDITIONS
Section 1. Access and Use of the Services.
1.1 Gryphon’s Obligations. Gryphon shall make the Service available to Customer pursuant to the applicable Order Form and Documentation. Gryphon will use commercially reasonable efforts make the Services available twenty-four (24) hours a day, seven (7) days a week, except during (a) Gryphon’s weekly maintenance window as specified in Exhibit A, Gryphon Support Services and Service Level Schedule and (b) a Force Majeure Event, if applicable. Customer acknowledges that Gryphon may modify the features and functionality of the Services during the Term. Gryphon will materially decrease the overall functionality of the Services purchased by the Customer during the applicable Term. The customer agrees that its purchase of a Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Gryphon with respect to future functionality or features.
1.2. Customer’s Obligations. Access to and use of the Services is restricted, such as to the number of Authorized Users permitted under the applicable Order Form. Customer is responsible for all activities conducted under it and its Authorized Users’ logins or other access methods for the Service, including maintaining the confidentiality of all Authorized User login information. Customer shall use the Service in compliance with applicable laws and regulations and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the Service, or any part thereof, or make it available to anyone other than its Authorized Users; (ii) send or store in the Service any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store infringing or unlawful material in connection with the Service; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs to the Service; (v) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (vi) modify, copy or create derivative works based on the Service, or any portion thereof; (vii) access the Service for the purpose of building a competitive product or service or copying its features or user interface; or (viii) delete, alter, add to or fail to reproduce in and on the Service the name of Gryphon and any copyright or other notices appearing in or on the Service or which may be required by Gryphon at any time. Customer is responsible for compliance with the provisions of this Agreement by its Authorized Users for any and all activities that occur under Customer’s account including monitoring the use of the Services for possible unlawful or fraudulent usage and shall notify Gryphon immediately if it becomes aware or has reason to believe that the Services are being fraudulently used. Customer acknowledges and agrees that its failure to notify Gryphon may result in the suspension of Customer’s right to use and access the Services.
1.3. Compliance. Any use of the Service in breach of this Agreement, Documentation or the applicable Order Form for such Services, by Customer or its Authorized Users that in Gryphon’s judgment threatens the security, integrity or availability of the Service, may result in Gryphon’s immediate suspension of the Service; however, Gryphon will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
1.4. System Requirements. A high-speed internet connection is required for proper transmission of the Services. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Services, including protocols accepted by Gryphon, and to follow procedure for accessing services that support such protocols. Gryphon assumes no responsibility for the reliability or performance of any connections described herein, including any Customer Data transmitted across computer networks or telecommunications facilities which are not owned, operated, or controlled by Gryphon.
1.5. Customer Affiliates. Customer Affiliates may purchase and use Service subscription subject to the terms of this Agreement by executing an Order Form or Statement of Work hereunder that incorporate by reference the terms of this Agreement, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer Affiliate for purposes of such Order Form or Statements of Work.
1.6. No Competitive Access. You may not access the Services for competitive purposes or if you are a competitor of Gryphon Networks Corp.
1.7. Modification. Customer acknowledges that Gryphon may modify the features and functionality of the Services during the Term. Gryphon shall provide Customer with thirty (30) days advance notice of any deprecation of any material feature or functionality. Gryphon will not decrease the overall functionality of the Services purchased by Customer during the Term.
1.7. Service-Specific Terms. Access and use of certain Services are subject to Gryphon’s Service-Specific Terms.
Section 2. Intellectual Property Rights.
2.1. Intellectual Property Rights. Gryphon grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the Services and Documentation for Customer’s internal business purposes, or as may otherwise be set forth in the applicable Order Form. No title or ownership of the Services or Software shall be transferred to Customer by way of this Agreement. Gryphon has sole right to and ownership of all intellectual property rights in and to: (a) the Services and Documentation, and all modifications, enhancements, improvements, adaptations, translations (b) the trademarks, service marks, and trade names associated with the Services; and (c) all other Gryphon supplied material developed for use in connection with the Services generally. The Services may contain material that is protected by United States and international copyright law and trade secret law, and by international treaty provisions. All rights not expressly granted to Customer herein are reserved to Gryphon.
Customer shall not: (a) publish, disclose, copy, rent, lease, modify, loan, distribute, sell, resell, transfer, assign, alter or create derivative works based on the Services or any part thereof; (b) reverse engineer, decompile, translate, adapt, or disassemble the Services including to: (i) build or create a competitive product or service, and (ii) build or create a product or services using similar ideas, features, functions or graphics of the Services, or (c) permit any third party to access the Services except as expressly permitted herein or under an Order Form.
2.2. Customer Data. As between Gryphon and Customer, Customer owns its Customer Data including all intellectual property rights related thereto. Gryphon is not responsible for validating Customer Data for accuracy, correctness, or usability. Customer grants to Gryphon, including its employees and consultants a worldwide, limited-term license to host, copy, transmit and display Customer Data, as reasonably necessary for Gryphon to provide the Service in accordance with the terms of this Agreement. Subject to the limited licenses granted herein, Gryphon acquires no right, title or interest from Customer or Customer’s licensors under this Agreement in or to any Customer Data. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data. Customer will not provide Gryphon with any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards as part of its Customer Data. Upon request by Customer, Gryphon shall, as identified by Customer, use commercially reasonable efforts to (1) promptly return to Customer, in the format and on the media as reasonably requested by Customer, Customer Data and (2) erase or destroy Customer Data in Gryphon’s possession. Any archival tapes containing Customer Data shall be used solely for back-up purposes or as otherwise required to provide the Services.
2.3. Statistical Usage Data. Gryphon owns the statistical usage data derived from the operation of the Service, including data regarding web applications utilized in connection with the Service, configurations, log data, and the performance results for the Service (“Usage Data”). Nothing herein shall be construed as prohibiting Gryphon from utilizing the Usage Data to optimize and improve the Service or otherwise operate Gryphon’s business; provided that if Gryphon provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or any User(s) to any third party.
2.4. Feedback. Gryphon shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Users relating to the features, functionality, or operation of the Service (“Feedback”). Gryphon shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
Section 3. Security, and Confidentiality.
3.1. Security. Gryphon shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Customer Data; (ii) protect the confidentiality of the Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement (“Security Program”).
3.2. Confidentiality. Each Party (“Recipient”) may, during the course of its provision and use of the Service hereunder, receive, have access to, and acquire knowledge from discussions with the other Party (‘Discloser”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, vendors, penetration test results and other security information; defect and support information and metrics; and first and third party audit reports and attestations (“Confidential Information”). Confidential Information shall not include, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Recipient; (c) were rightfully known to the Recipient prior to its receipt thereof from the Discloser; (d) are or were disclosed by the Discloser generally without restriction on disclosure; (e) the Recipient lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Recipient as shown by documents and other competent evidence in the Recipient’s possession. The Recipient shall not (i) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, except with the Discloser's prior written permission, or (ii) disclose or make the Discloser’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information. If the Recipient is compelled by law to disclose Confidential Information of the Discloser, it shall provide the Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure.
Section 4. Warranties and Disclaimer.
4.1. Service Warranties. Gryphon warrants that during the Term: (i) the Service shall perform materially in accordance with the applicable Documentation, (ii) Gryphon will employ then-current, industry-standard measures to test the Service to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Service, and (iii) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to use the Service granted herein. As Customer’s exclusive remedy and Gryphon’s entire liability for a breach of the warranties set forth in this Section 4, Gryphon shall use commercially reasonable efforts to correct the non- conforming Service at no additional charge to Customer, and in the event Gryphon fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Service and receive an immediate refund of any prepaid, unused Fees for the non-conforming Service. The remedies set forth in this subsection shall be Customer’s sole remedy and Gryphon’s sole liability for breach of these warranties. The warranties set forth in this Section 4 shall apply only if the applicable Service has been utilized in accordance with the Order Form, Documentation, this Agreement, and applicable law.
4.2. Customer Warranties. Customer represents and warrants to Gryphon that it (a) is duly organized, validly existing and in good standing under the laws of the country and/or state in which it is organized and (b) has the full corporate power and authority to enter into this Agreement and any applicable Order Form and (c) to perform its obligations hereunder. Customer further warrants to Gryphon that it has and will continue to have the right to provide Gryphon with all Customer Data for the purposes set forth herein and that Customer will not use the Services in conflict or violations of any applicable law or regulation.
4.3. Disclaimer. EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH UNDER THIS SECTION 4, GRYPHON HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICE, OR OTHER SUBJECT MATTER OF THISAGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER THIS SECTION 4. GRYPHON MAKES NO WARRANTY REGARDING ANY NON-GRYPHON APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE. GRYPHON SHALL HAVE NO OBLIGATION TO THE EXTENT THAT ANY DEFICIENCY OR FAILURE OF A SERVICE IS CAUSED BY (i) IMPROPER USE OR OPERATION OF THE SERVICE BY CUSTOMER; (ii) CUSTOMER’S REFUSAL OR DELAY TO IMPLEMENT UPGRADES TO THE SERVICES AS PROVIDED BYGRYPHON; (iii) FAILURE BY CUSTOMER TO ABIDE BY ANY STATE OR FEDERAL LAW OR REGULATION APPLICABLE TO THE SERVICES; (iv) FAILURE OR MALFUNCTION OF ANY ELECTRONIC, TECHNOLOGY OR TELECOMUNICATIONS EQUIPMENT OR RESOURCE NOT UNDER GRYPHON’S SOLE CONTROL; OR (v) CUSTOMER REQUESTED MODIFICATION, CHANGE TO OR ALTERATION OF ANY GRYPHON SERVICE DEFAULTCONFIGURATION, SETTING, PROCESS OR FUNCTIONALITY. GRYPHON DOES NOT WARRANT THAT THE OPERATION OF OR ACESSS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Section 5. Limitation of Liability.
5.1. EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST BUSINESS OR SALES, LOST DATA (WHERE SUCH DATA IS LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF GRYPHON), BUSINESS INTERUPTION, LOSS OF GOODWILL, COST OF REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL SPECIAL EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR FOR ANY OTHER INDIRECT, LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORSEEN SUCH DAMAGES.
5.2. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY OR THE OTHER PARTY’S AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES EXCEED THE FEES FOR SERVICES PAID BY RESELLER TO GRYPHON WITH RESPECT TO THE SERVICES CUSTOMER RECEIVED DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
THE LIMITATIONS SET FORTH IN SECTION 5.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES RESULTING FROM EITHER PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT.
Section 6. Indemnification.
6.1. Gryphon’s Indemnification Obligation. Gryphon will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the Service, as provided by Gryphon to Customer under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Gryphon will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Gryphon, in connection with an Infringement Claim. In the event of any such Infringement Claim, Gryphon may, at its option: (i) obtain the right to permit Customer to continue using the Service, (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Customer any prepaid, unused Fees for such infringing Service hereunder. Notwithstanding the foregoing, Gryphon will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than Gryphon, (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Customer’s use of the Service other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 6 are Gryphon’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights of any kind.
6.2. Customer Indemnification Obligation. Customer will defend Gryphon from any and all claims, demands, suits or proceedings brought against Gryphon (i) by a third party alleging a violation of a third party’s rights arising from Customer's provision of the Customer Data or (ii) alleging a violation of applicable law in connection with Customer’s use of the Services. Customer will indemnify Gryphon for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Customer.
6.3. Indemnity Requirements. The Party seeking indemnity under this Section 6 ("Indemnified Party") must give the other Party ("Indemnifying Party") the following: (a) prompt written notice of any claim for which the Indemnified Party intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnifying Party in the defense of the claim, at the Indemnifying Party’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnified Party may participate in the defense of the claim at its sole expense. The Indemnifying Party may settle any claim without the Indemnified Party’s written consent unless such settlement: (a) does not include a release of all covered claims pending against the Indemnified Party or (b) contains an admission of liability or wrongdoing by the Indemnified Party.
Section 7. Term, Termination, and Effect of Termination.
7.1. Term. This Agreement shall apply to Customer and Customer’s Authorized Users for the Term specified within the applicable Order Form(s) whereby Gryphon’s Services are being accessed and used by Customer until the expiration or termination of such Order Form(s).
7.2. Termination. Gryphon reserves the right to suspend or terminate Customer’s Services if (i) Gryphon is notified by Reseller of Customer’s failure to pay amounts due to Reseller with respect to Customer subscription to a Service; or (ii) Reseller fails to pay any amounts due to Gryphon pursuant to the Reseller Agreement with respect to Customer’s subscription to the Service. Gryphon shall have no liability to Customer of any kind with respect to any such suspension or termination.
Section 8. General.
8.1. Amendment. Gryphon may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Gryphon will notify you not less than thirty (30) days prior to the effective date of any such amendment and Customer’s continued use of the Services following the effective date of such amendment may be relied upon by Gryphon as Customer’s consent to the terms of such amendment. Gryphon’s failure to enforce at any time, any provision of this Agreement does not constitute a waiver of that provision or any provision of this Agreement.
8.2. Notices. Any notices directed to Gryphon under this Agreement must be delivered in English and in writing delivered to: (a) Gryphon Networks Corp., 33 Arch Street, Floor 17, Boston, MA 02110 U.S.A Attn: Legal Department or (b) electronic mail to notices@gryphon.ai.
8.3. Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of law principles. With respect to all disputes arising out of or related to this Agreement, the Parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York.
8.4. Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Service of process, summons, notice or other document by mail to such Party's address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.
8.5. Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
8.6. Equitable Relief. The Parties will be entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a Party to seek equitable relief in a court of competent jurisdiction.
8.7. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys' fees, expert witness fees and out-of-pocket and court costs from the non-prevailing Party.
8.8. Force Majeure. Neither Party will be liable in damages for any reasonable delay or default in performing under this Agreement if such delay or default is caused by conditions beyond the Party’s reasonable control, including without limitation acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations or failures or fluctuations in electrical power, heat, lights, air conditioning or telecommunications equipment (each of the foregoing, a “Force Majeure Event”), provided that the non-performing Party is without fault in causing such condition. Subject to the Party so delaying promptly notifying the other Party in writing of the reason for the delay and the likely duration of the delay, the performance of the delaying Party’s obligations, to the extent affected by the delay, will be temporarily suspended during the reasonable period of time that the cause persists, provided that if performance is not resumed within thirty(30) days after that notice, the non-delaying Party may by notice in writing immediately terminate this Agreement.
8.9. Independent Contractors. The Parties shall be independent contractors under this Agreement, and nothing herein shall constitute either Party as the employer, employee, agent, or representative of the other Party, or both Parties as joint venturers or partners for any purpose.
8.10. Entire Agreement. This Agreement constitutes the entire agreement and supersedes any and all prior agreements between Customer and Gryphon with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order, request for information, request for proposal, or other order documentation and all such terms or conditions in such purchase order, request for information, request for proposal, or other order documentation are null and void. Except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.
Exhibit A
Gryphon Support Services and Service Level Schedule
Gryphon Support Services
Gryphon shall provide Customer the following Support Services beginning on the date Gryphon first provides Customer access to the Services and continuing throughout the Term and any Renewal Terms:
- If requested by a Gryph Compliance Customer, initial import and load of the Customer company specific Do Not Call List data must be submitted in comma-separated values, pipe delimited, or another Gryphon accepted file format (Customer will retain responsibility for compliance with any preexisting or separately maintained Customer do not call list(s) that is not transferred to Gryphon),
- Access to any scheduled training sessions for Customer and its Authorized Users will be web-based and/or onsite, based on Gryphon’s availability and depending on the time and location. Gryphon’s customer success team will work with Customer to determine appropriate schedules. Trainings may include both initial and refresh training for any authorized User of Customer. Customer’s appointed Gryphon customer success manager (CSM) the primary Gryphon contact for all training matters including scheduling and follow-up questions,
- Gryphon will archive and provide Customer access to records of authorized User Service calling activity for up to five (5) years,
- Customer shall receive upgrades to Services which shall mean modifications that result from error corrections, additions in functionality, point releases or substitutes that accomplish performance, structural or functional improvements (substantial or otherwise), including re-design or replacement. Upgrades do not include new releases of the Services that are (i) identified under a new product name, (ii) are not generally made available to other customers without the payment of an additional fee or fees, or (iii) contain substantially new, different or enhanced functionality than that contained in or delivered by the Services pursuant to this Agreement, and
- Phone support for Services is available from the Gryphon Help Desk Monday through Friday from 8:00 am to 6:00 pm and Saturday through Sunday from 9:00 am to 5:00 pm, Eastern Time. In the event Customer opens a trouble ticket, the Help Desk will assign a level of severity in accordance with the schedule
| Severity | Description | Time to Repair |
| Critical | Services are not functional or there exists severe Customer operational impact which threatens future business productivity | 4 Business Hours |
| High | Loss of Functionality that diminishes business operations and productivity | 8 Business Hours |
| Low | Feature or Function not working which does not seriously impact Customer’s business or operations | 24 Business Hours |
Gryphon Service Level Schedule (SLS)
Gryphon shall be responsible for maintaining the service levels below beginning on the first full calendar month of Customer’s use of the Services in a production environment.
Contact Point: means each U.S. telephone number, postal mail address or email address submitted for do- not-call, do-not-text, do-not-email, or do-not-mail certification.
System Hours of Operation: Services are generally available 24/7 excluding Weekly Sunday Maintenance Window.
Weekly Sunday Maintenance Window: means 1:00 a.m. to 5:00 a.m. ET each Sunday.
|
Service/Application |
Availability/ Response Time |
Service Level Adherence |
Measurable Period |
| Gryphon ONE Platform with Gryphon Connect | 99.90% / ≤ 450 milliseconds | 99.90% | Systems Hours of Operation |
| Gryphon Browser Plug-In | 99.90% / ≤ 4 seconds | 99.90% | Systems Hours of Operation |
| CRM Integration
(non-batch processing) |
99.90% / ≤ 4 seconds | 99.90% | Systems Hours of Operation |
| Search™ | 99.90% / ≤ 10 seconds | 99.90% | Systems Hours of Operation |
| Certify
File processing measured from initial file pickup to completion |
99.90% / ≤ 24 hours | 99.90% | Systems Hours of Operation |
| Automated Call Blocking | 99.90% / ≤ 1 second (per Certification) | 99.90% | Systems Hours of Operation |
| **Web Services | 99.90% / ≤ 1 second (per Contact Point) | 99.90% | Systems Hours of Operation |
| *sFTP Service
File processing measured from initial file pickup to completion |
99.90% / ≤ 24 hours | 99.90% | Systems Hours of Operation |
* ≤ five (5) million Contact Points submitted per twenty-four (24) hour period.
**≤ two hundred (200) total Contact Points per any single Web Service connection and ≤ fifty (50) concurrent Web Service connections allowed.
Scheduled system downtime and any delay or default attributable to Customer’s use of Gryphon Services other than as set forth in the Agreement or Gryphon documented instructions shall not be included in determining whether Gryphon has met the service levels set forth herein. Service levels shall be measured based on the performance of Gryphon’s systems, excluding any third-party technology and telecommunications resources not controlled by Gryphon. Service levels for Gryphon services accessed via third party technology and telecommunications resources (example: CRM service provider application or IVR) shall be measured from and back to the applicable interface with Gryphon’s systems. Service levels set forth herein are subject to change based on Customer directed configurations or customizations.
Exclusions
All SLS measurements do not include periods of Service issues resulting in whole or in part from one or more of the following causes:
- Gryphon scheduled maintenance or Customer scheduled
- Force majeure events beyond the reasonable control of Gryphon including, but not limited to, acts of God, government regulation, natural disaster, and national emergency.