Terms of Service

3 PROFESSIONAL SERVICES

3.1 PROFESSIONAL SERVICES. Customer and TS may enter into one or more SOWs subject to this Agreement, for the facilitation of Professional Services. TS will perform the Professional Services, subject to the fulfillment of any responsibilities and payments due from Customer, as stated in the SOW.

3.2 Professional Services fees are invoiced either as fixed price or on a time and materials basis, as specified in the SOW.

 

4 ORDERING

4.1 ORDERS AND PAYMENT. In consideration of the rights granted in this Agreement, Customer shall pay TS or its Authorized Partner the amounts specified in the Order. Each Order is non-cancellable and non-refundable, except as provided in this Agreement. Prices stated in each Order are final. Subscription Service fees are invoiced in arrears by TS, based on the actual usage (the highest number of Authorized Users during a month). Customer may increase or decrease the number of Authorized Users at any time during the Term. Each Term is a non-divisible, continuous commitment, regardless of the invoice schedule. All invoices shall be due and payable within 30 days after receipt of invoice or as stated in the Order Form. If Customer fails to pay, cure, or regain compliance under Section 4.2 (Use Verification), TS may suspend Customer’s use of the Subscription Service or terminate this Agreement for breach, in addition to any other available rights and remedies. All terms of this Section 4.1 apply except as may be expressly stated otherwise in the applicable Order, SOW, or elsewhere in this Agreement.

4.2 USE VERIFICATION. TS may remotely review Customer’s use of the Subscription Service and upon TS’s written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement, and access to the Customer Hosting environment. If TS determines that Customer has exceeded its permitted access and use rights to the Subscription Service, TS will notify Customer and within 30 days thereafter Customer shall either: (a) disable any unpermitted use, or (b) purchase additional subscriptions in accordance with Customer’s actual use.

 

5 INTELLECTUAL PROPERTY

5.1 TS OWNERSHIP. TS exclusively own all right, title, and interest in and to all Intellectual Property Rights in the TS Technology, notwithstanding anything in this Agreement. Except for the access and use rights, and licenses expressly granted in Section 2 (Access, Use Rights and Restrictions) of this Agreement, TS reserves all rights in the TS Technology and does not grant Customer any rights (express, implied, through exhaustion, or otherwise). Any TS Technology delivered to Customer or to which Customer is given access shall not be deemed to have been sold, even if TS for convenience references words such as “sale” or “purchase” in the applicable Order, SOW, or other documents.

5.2 CUSTOMER OWNERSHIP. As between the parties, Customer will retain all right, title, and interest in and to all Intellectual Property Rights in Customer Data and Customer Technology. Customer hereby grants to TS a royalty-free, fully-paid, non-exclusive, non-transferrable (except as set forth in Section 13.1 Assignment), worldwide, right to use Customer Data and Customer Technology solely to provide and support TS Technology.

5.3 SUGGESTIONS. TS encourages Customer to put forward suggestions, recommendations, ideas, or other constructive criticism regarding improvements to TS Technology (collectively, “Suggestions”). If Customer provides such Suggestions, Customer grants to TS a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section13.1 Assignment), non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Suggestions (including by incorporation of such Suggestions into TS Technology) without restriction.

5.4 PROFESSIONAL SERVICES. TS assigns (and is deemed to have assigned) to Customer any Newly Developed IP upon payment in full by Customer for the Professional Services under which the Newly Developed IP was originated. If any TS Technology is incorporated into a deliverable, TS grants to Customer a non-exclusive, royalty-free, non-transferable (except as set forth in Section 13.1 Assignment), non-sublicensable worldwide license to use the TS Technology incorporated into the deliverable in connection with the Subscription Service as contemplated under this Agreement during the applicable Term. Nothing in this Agreement shall be deemed to restrict or limit TS’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Professional Services.

 

6 WARRANTIES; DISCLAIMER OF WARRANTIES

6.1 MUTUAL WARRANTIES. Customer and TS respectively represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.

6.2 LIMITED SUBSCRIPTION SERVICE WARRANTY. TS warrants that, during the Term, Customer’s production instance of the Subscription Service will substantially conform to the product description, documentation and/or SOW. To submit a warranty claim, under this Section 6.2, Customer will submit a support request to resolve the non-conformity. If the non-conformity continues without remedy more than 30 days after notice to TS under this Section 6.2, Customer may terminate the affected Subscription Service. Notwithstanding the foregoing, this warranty will not apply to any non-conformity due to a modification of or defect in the Subscription Service made or caused by any person other than TS or a person acting at TS’ direction. This Section 6.2 sets forth Customer’s exclusive rights and remedies (and TS’ sole liability) in connection with this warranty.

6.3 LIMITED PROFESSIONAL SERVICES WARRANTY. TS warrants that the Professional Services will be performed in a competent and workmanlike manner, in accordance with accepted industry standards and practices and all material requirements set forth in the SOW. Customer will notify TS of any breach within 30 days after performance of the non-conforming Professional Services. Upon receipt of such notice, TS, at its option, will either use commercially reasonable efforts to re-execute the Professional Services in conformance with these warranty requirements or will terminate the affected Professional Services and refund to Customer any amounts paid for the nonconforming Professional Services. This Section 6.3 sets forth Customer’s exclusive rights and remedies (and TS’ sole liability) in connection with this warranty.

6.4 DISCLAIMER OF WARRANTIES. Except for the warranties expressly stated in this Section 6, to the maximum permitted by applicable law, TS hereby disclaims all warranties of any kind, whether express, implied or statutory, or otherwise including, but not limited to, any (if any) warranties, duties or conditions of or related to: merchantability, accuracy, title, non-infringement, or fitness for a particular purpose, and any warranties arising from usage. Without limiting the foregoing, TS specifically does not warrant that TS Technology will meet the requirements of Customer or others, or will be accurate or operate without interruption, delay, error, or any other damage resulting from events beyond TS’ reasonable control, without regard to whether such events are reasonably foreseeable by TS. Customer recognizes that in entering this Agreement, it has not relied on any promise, warranty, or representation not expressly stated in this Agreement.

 

7 CONFIDENTIAL INFORMATION

7.1 CONFIDENTIALITY OBLIGATIONS. The recipient of Confidential Information will: (a) at all times protect it from unauthorized disclosure with the same degree of care that it would use to protect its own confidential information; and (b) not use it except to the extent necessary to exercise rights or fulfill obligations under this Agreement. Each party will limit the disclosure of the other party’s Confidential Information to those of its employees and contractors and the employees and contractors of its Affiliates with a need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement, and then only to employees and contractors subject to binding disclosure and use restrictions at least as protective as those in this Agreement. Each party’s obligations under this Section 7 will remain in force during, and for three years after termination of, this Agreement. Receiving party will, at disclosing party’s request, return all originals, copies, reproductions, and summaries of Confidential Information and other tangible materials provided to receiving party as Confidential Information, or at disclosing party’s option, certified destruction of the same. Provisions for return of Customer Data are set forth in Section 10.3 (Return of Customer Data).

7.2 THIRD PARTY REQUESTS. This Agreement will not be construed to prevent receiving party from disclosing the disclosing party’s Confidential Information to a court, or governmental body pursuant to a valid court order, law, subpoena, or regulation, on the condition that the receiving party: (a) gives prompt notice (or the maximum notice permitted under law) before making such disclosure, unless prohibited by Law; (b) provides reasonable assistance to disclosing party in any lawful efforts by disclosing party to resist or limit the disclosure of such Confidential Information; and (c) discloses only that part of disclosing party’s Confidential Information that is legally required. In addition, receiving party will cooperate and assist disclosing party, at disclosing party’s cost, in relation to any such request and any response to any such communication.

 

8 INDEMNIFICATION

8.1 TS OBLIGATION. TS shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out a third party claim that the Subscription Service infringes any third-party patent, copyright, or trademark issued before, or misappropriates any third-party trade secret during the term of this Agreement. TS shall have no indemnification obligation, and Customer shall indemnify TS pursuant to this Agreement, for claims of infringement arising from the combination of Subscription Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Subscription Service not expressly authorized herein.

8.2 CUSTOMER OBLIGATION. Customer shall indemnify and hold TS, its Authorized Partner, its suppliers, its licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2 or 5 of this Agreement.

8.3 PROCESS. A party seeking indemnification under this Agreement shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.

 

9 LIMITATION OF LIABILITY

9.1 LIMITATIONS. Customer’s exclusive remedy and TS’, its suppliers’ and licensors’ total aggregated liability relating to, arising out of, or incidental to this Agreement, whether for breach of contract, breach of warranty, indemnification or any other claim shall be limited to the actual direct damages incurred by Customer, up to the aggregated amounts paid by Customer and received by TS hereunder during the 12 months immediately preceding the applicable claim. The existence of multiple claims or suits under or related to this Agreement will not enlarge or extend this limitation of damages. Customer hereby releases TS, its suppliers and licensors from all obligations, liability, claims or demands in excess of this limitation.

9.2 EXCLUSION OF CERTAIN DAMAGES AND LIMITATIONS OF TYPES OF LIABILITY. In no event will TS be liable (a) for defects attributable to assets, hardware, software or other equipment not provided by TS, (b) if Customer or a third party on behalf of Customer has modified such assets, hardware, software or other equipment without TS’s prior consent, or (c) for any special, consequential, incidental, indirect or punitive damages (including damage to business, reputation or goodwill), lost profits or lost revenue arising out of or related to the subject matter of this Agreement or the use of or inability to use the Subscription Service. The foregoing exclusion and liability limitations apply even if such party has been advised of the possibility of such damages and even in the event of strict or product liability.

9.3 INTERPRETATION.  The limitations in sections 9.1 and 9.2 are independent of each other. The limitation of damages set forth in section 9.1 shall survive any failure of essential purpose of the limited remedy in section 9.2.

9.4 GROSS NEGLIGENCE; WILLFUL MISCONDUCT. As provided by law, limitation of liability does not apply to damages or losses as a result of an intentional or grossly negligent act, breach of confidentiality, or a party’s infringement of the other party’s or a third party’s, intellectual property rights.

 

10 TERMINATION

10.1 TERMINATION Each party may terminate this Agreement in its entirety: (a) on 30 days prior notice to the other; (b) immediately on notice if the other party materially breaches this Agreement and does not cure such breach within 30 days after the other party’s receipt of notice of the breach. Either party may terminate an Order or SOW on notice if the other party materially breaches this Agreement or the applicable Order or SOW for the affected service and does not cure the breach within 30 days after receiving notice of the breach. Professional Services are separately ordered from the Subscription Service and are not required for use of the Subscription Service. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Subscription Service even if the services are enumerated in the same Order.

10.2 EFFECT OF TERMINATION. On termination or expiration of the Subscription Service, Customer will (a) stop using and uninstall all TS Technology in Customer Hosting, or (b) stop accessing and using, and TS will stop providing, the Subscription Service. All related rights granted to Customer in this Agreement will terminate immediately, automatically, and without notice. Within 30 days after the effective date of termination by TS for Customer’s breach, Customer will pay all remaining amounts, if any, payable under this Agreement regardless of any due dates specified in the Order.

10.3 RETURN OF CUSTOMER DATA. After termination or expiration of this Agreement or the applicable Subscription Service, upon Customer’s written request, TS will provide any Customer Data in the Subscription Service to Customer in TS’ standard database export format at no additional charge. Customer must submit such request to TS within 60 days after termination or expiration of this Agreement or the Subscription Service. TS is not obligated to maintain or provide any Customer Data after such 60-day period and will, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, and delete Customer’s instances of the Subscription Service.

10.4 SURVIVAL. Sections 2.2 Restrictions, 5 Intellectual Property, 6 Warranties; Disclaimer of Warranties (solely in accordance with its terms), 7 Confidential Information through 10 Termination (solely in accordance with its terms), 12 Additional Terms, 13 General, together with any other terms required for their construction or enforcement, will survive Termination or expiration of this Agreement.

 

11 NOTICE AND REQUESTS

11.1 Either party may give notice to the other party by means of e-mail to the primary contact designated in the Order or by written communication sent by first class mail or currier, either of which shall constitute written notice under this Agreement.

11.2 Additional user licenses purchased by Customer during the Term shall be subject to the terms of this Agreement. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by the terms set forth in Section 12 Additional Terms.

 

12 ADDITIONAL TERMS

12.1 With the exception of additional user licenses obtained by Customer under Section 4.1 and 11, TS shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by TS. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.