Tiny Cloud Services Subscription Agreement

This Tiny Cloud Services Subscription Agreement (the “Agreement”) is entered into between Ephox Corporation DBA Tiny Technologies Inc. (“Tiny”) having offices at 2100 Geng Road, Suite 210, Palo Alto, CA 94303, United States of America and the Subscriber.

Posted: January 15, 2024.

If you require a to-be-signed version, please contact sales@tiny.cloud.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING TINY’S SUBSCRIPTION SERVICES.

THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF CERTAIN SUBSCRIPTION SERVICES OF TINY. THE PARTICULAR SUBSCRIPTION SERVICES WHICH TINY WILL MAKE AVAILABLE TO YOU HEREUNDER WILL BE THOSE WHICH ARE SPECIFIED IN AN ONLINE BILLING PAGE OR OTHER ORDERING DOCUMENT WHICH IS SUBMITTED BY YOU AND WHICH REFERENCES THIS AGREEMENT (IN EACH CASE, AN “ORDER”). BY USING THE SUBSCRIPTION SERVICES, CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR ENTERING INTO AN ORDER WHICH REFERENCES THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH ORDER IS SUBJECT TO, AND GOVERNED BY, THIS AGREEMENT AND DEEMED TO BE A PART HEREOF. AS USED IN THIS AGREEMENT, “YOU”, “YOUR” OR “SUBSCRIBER” REFERS TO THE COMPANY OR ENTITY IDENTIFIED IN THE ORDER. BY ACCEPTING THIS AGREEMENT, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUBSCRIBER TO THIS AGREEMENT.

TINY MAY UPDATE OR MODIFY THIS AGREEMENT IN ACCORDANCE WITH SECTION 10.7 BELOW.

1. DEFINITIONS

The following definitions apply in this Agreement:

“Customer” is any person or entity who receives a license from Subscriber to use the Subscriber Application as interfaced with the Subscription Services for its own use and not for resale or further sublicensing.
“Customer Agreement” means a standard agreement under which a Customer is licensed by Subscriber to use the Subscriber Application.
“Documentation” means the applicable product documentation (which may include online user/help manuals) for the Subscription Services which is made generally available by Tiny as part of the Subscription Services.
“Effective Date” means, unless otherwise specified in an Order, the date on which Subscriber clicked the “I agree” button on the website or otherwise entered into an Order with Tiny.
“Editor Load” means an event that occurs each time TinyMCE is initialized in Your application. For example, if 100 users load TinyMCE 10 times each, there were 1,000 editor loads. This is recorded with a request to Tiny’s server when the “init” event is dispatched in TinyMCE.
“Software” means the software used by Tiny in the provision of the Subscription Services.
“Software-as-a-Service” (“SaaS”) means Software that is made available to the Subscriber via the internet from a remote hosted, Tiny-controlled environment.
“Subscriber Application” means the Subscriber’s software application that will be interfaced with the Subscription Services to the extent authorized hereunder.
“Subscription Fees” shall have the meaning set forth in Section 5.
“Subscription Period” means the term for which Subscriber is granted rights to use the Subscription Services, including any and all renewal periods.
“Subscription Services” shall mean the Software-as-a-Service provided by Tiny as set forth in an Order.
“Support” shall have the meaning set forth in Section 7.3.

2. GRANT OF LICENSE; TYPES OF LICENSES

In consideration for the payment of the Subscription Fees set forth in Section 5 and subject to the terms and conditions of this Agreement, Tiny hereby grants to Subscriber a limited right to use the Subscription Services under the terms and conditions of this Agreement and the applicable Order. An Order may refer to or incorporate an online pricing page or other section of Tiny’s website and, if so, those other pages and/or sections shall be deemed a part of the Order. The grant of this license shall terminate upon the expiration or termination of this Agreement.

Licenses granted are of the following types:

Trial Subscription License – see Section 2.1
Paid Subscription License – see Section 2.2
Free Subscription License – see Section 2.3

2.1 Trial Subscription License

Subject to the terms below, Subscriber may use the Subscription Services at no charge for an evaluation period of up to fourteen (14) days (a “Trial Subscription License” for the “Free Trial Period”). If Subscriber selects a Paid Subscription License pursuant to Section 2.2 below, then: (a) during the Free Trial Period, Subscriber shall be provided access to those packages and bundles of features included in that Paid Subscription License; and (b) if Subscriber does not cancel the Subscription Services (via Tiny’s customer portal) prior to the end of the Free Trial Period, then the Paid Subscription License will commence immediately thereafter. If Subscriber selects a stand-alone Free Trial License (i.e., without selecting a Paid Subscription License) then: (x) during the Free Trial Period, Subscriber shall be provided access to all packages and bundles then made generally available for users of Tiny’s premium Subscription Services; and (y) Subscriber’s access to the Subscription Services will terminate at the end of the Free Trial Period unless Subscriber purchases a Paid Subscription License (in which case Subscriber will be entitled to access those packages and bundles of features included in that Paid Subscription License). For clarity: (I) Subscriber shall be limited to one (1) Free Trial Period and; (II) a Free Trial Period is not provided for a Free Subscription License.

2.2 Paid Subscription License

If Subscriber purchases a license to the Subscription Services for which a fee is due pursuant to an Order (a “Paid Subscription License”), then the Subscription Period commences immediately following the Free Trial Period and continues until the end of the Subscription Period unless earlier terminated in accordance with this Agreement. Subscription Services for a Paid Subscription License, and associated Subscription Fees, will renew in accordance with Section 5.

2.3 Free Subscription License

If Subscriber enters into an Order for a license to the Subscription Services for which no fee is due (a “Free Subscription License”), the Subscription Period commences on the Effective Date of the Order and continues until this Agreement is terminated.

Paid and Free Subscription Licenses are subject to a limitation on Editor Loads, and may also be subject to limitations on access to packages and bundles of features, as specified in the Order. Use of the Subscription Services beyond any such limitation requires payment of additional usage fees (“Overage Fees”). Such Overage Fees, including for upgraded packages or features, are based on Tiny’s then-current fees as set forth on the pricing page of Tiny’s website as further described in Sections 3.3 and 5 below.

3. PERMITTED LICENSE USES AND RESTRICTIONS

3.1 Subscription Services Usages and Restrictions

A. The Subscriber is granted a non-exclusive, non-transferable, time-bounded right to use the Subscription Services solely to:

interface Subscriber Applications with the Subscription Services so that the Subscription Services inter-operate with the Subscriber Applications;
make the Subscription Services available to Customers and Subscriber’s internal users of the Subscriber Applications for use solely in conjunction with the Subscriber Applications in compliance with the terms of this agreement.

B. The Subscription Services provided to the Subscriber are non-exclusive and limited. Subscriber may not and shall ensure that its Customers and internal users do not:

decompile, disassemble, modify or reverse engineer the Subscription Services or its APIs;
use the Subscription Services in support of any third party except as expressly authorized hereunder;
sell, sublicense, rent, lease or otherwise transfer or grant any rights to the Subscription Services except as expressly authorized hereunder;
access the Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Subscriber is a Tiny competitor or an employee thereof;
exceed usage limits specified in the Order without payment of Overage Fees as described hereunder; or
permit its Customers or internal users to use the Subscription Services after termination or expiration of this Agreement.

3.2 Access to Subscription Services

The Subscription Services are made available to Subscriber from a remote computing environment that is hosted by Tiny or its third party hosting provider. Subscriber may access the Subscription Services but Subscriber has no rights to receive a copy of the object code or source code to the Software.

3.3 Subscription Services Usage Calculation

Use of the Subscription Services is subject to the number of Editor Loads specified in the product plan set forth in the Order; Fees for add-on Editor Loads are calculated as follows, where “Authorized Editor Loads” refers to the then-current number of Editor Loads to which Subscriber is entitled (i.e., the initial Editor Loads in the Order plus any add-on Editor Loads purchased pursuant to the terms below):

Tiny will calculate a count of the number of Editor Loads as at the end of each monthly subscription period;
Tiny will compare the actual number of Editor Loads against the number of Authorized Editor Loads;
Tiny will notify the Subscriber if the actual number of Editor Loads exceeds the Authorized Editor Loads; Tiny will also provide notification of approaching limits as usage gets toward the limit of the Authorized Editor Loads;
Subscriber will be billed for usage exceeding their Authorized Editor Loads at the published rate per each bundle of 1,000 Editor Loads on Tiny pricing page of Tiny’s website;
Subscriber may upgrade their Subscription Services plan (at then-current fees) to accommodate further Editor Loads or pay Overage Fees as billed;
In the event that the Subscriber does not upgrade their plan or pay overage amounts billed within the payment terms of this Agreement, the Subscription Services will be suspended or terminated; and
Unless otherwise terminated pursuant to this Agreement, the Subscription Services will be restored upon Subscriber’s payment of fees due, or for Free Subscription Licenses, at the start of the next billing period.

3.4 Customer Agreements

Subscriber shall ensure that it puts in place a Customer Agreement with each Customer having terms substantially similar or at least as protective of Tiny’s rights as the provisions of this Agreement and the following provisions:

The Customer is granted a nonexclusive, nontransferable right to use the Subscription Services solely for its internal use and not for resale or further licensing;
The Customer may use the Subscription Services solely as interfaced with a Subscriber Application;
The Customer shall not be provided any warranty with respect to the Subscription Services, and the Customer Agreement shall incorporate the disclaimer set forth in Section 8.1 but with no reference to any warranty being provided to the Customer;
Subscriber’s licensors and vendors shall not have any liability or responsibility to Customer;
Title to the Subscription Services remains with Tiny.
The Customer’s right to use the Subscription Services will terminate if the Customer breaches any of the terms set out in the Customer Agreement and is unable to cure such breach within a prompt cure period.

4. TERM & TERMINATION

4.1 Termination

This Agreement commences on the Effective Date and will remain in force until it is terminated or the Subscription Services are cancelled or otherwise expire in accordance with this Agreement. As described in Section 5 below, Subscriber may cancel the Subscription Services prior to the expiration of the then-current Subscription Period through Tiny’s customer portal. In addition, Tiny may terminate this Agreement immediately if Subscriber does not pay the Subscription Fees (including Overage Fees) as provided herein. This Agreement may also be immediately terminated by Tiny without notice if: (a) Subscriber fails to comply with any term(s) of this Agreement or (b) Subscriber terminates business activities or becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority. Tiny may terminate this Agreement upon notice to Subscriber: (i) prior to the commencement of any renewal period for a Paid Subscription License or: (ii) at any time for Trial Subscription License and Free Subscription License.

4.2 Effect of Termination

Upon termination of this Agreement (including upon expiration of the Subscription Services), all license grants provided herein shall immediately terminate and Subscriber and any of its internal users and Customers shall immediately cease using Subscription Services. For clarity, termination of this Agreement shall also terminate the applicable Order for the Subscription Services. The provisions of this Agreement which relate to confidentiality, intellectual property ownership, limitations and disclaimers of liability and payment obligations, along with terms which expressly or by their nature should reasonably survive termination, shall survive expiration or termination hereof.

5. PAYMENT TERMS

Subscriber agrees to pay Tiny the fees specified in the Order for use of the Subscription Services during the Subscription Period (“Subscription Fees”). The Subscription Fees are payable in United States dollars. A valid credit card, PayPal account or other Tiny-approved electronic payment method is required to obtain a license to the Subscription Services. The Subscription Fees are payable in advance for each subscription term (i.e., monthly or annually, as applicable) during the Subscription Period.

For a subscription that renews monthly, Subscription Fees are paid on a month-to-month basis in advance and will be automatically charged unless Subscriber cancels the Subscription Services through Tiny’s customer portal before the subscription month begins. For a subscription that renews annually, Subscription Fees will be paid in advance, and automatically charged, for each subsequent year unless Subscriber cancels the Subscription Services via the customer portal before the beginning of the subsequent subscription year. Subscriber is committed to each Subscription Period unless it cancels the Subscription Services prior to the commencement thereof in accordance with the above terms. In this regard, Subscription Fees are non-refundable and non-cancellable. When a payment or automatic payment cannot be processed, Subscriber shall have up to fourteen (14) days from the renewal date to submit payment in order to retain use of the Subscription Services.

If Subscriber exceeds its licensed number of Editor Loads or other applicable usage limitations for any subscription month (see Section 3.3 above for additional details), then promptly upon expiration of each such subscription month, Subscriber shall pay Overage Fees (which shall be automatically charged) as set forth in the then-current pricing page on Tiny’s website. For clarity, Editor Loads are sold in bundles so that, if Subscriber exceeds its then-current ceiling for its licensed bundle, it must purchase one or more add-on bundle(s) in quantities which are then reflected on Tiny’s pricing page. Overage Fees are a part of the Subscription Fees due to Tiny hereunder.

Tiny may increase Subscription Fees for any renewal period by notifying Subscriber of such increase (including via a pricing page on Tiny’s website) prior to the commencement of such renewal period.

The Subscription Fees do not include taxes, and Subscriber shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by Tiny) due as a result of any amounts paid to Tiny. Subscriber shall bear all of Tiny’s costs of collection of overdue fees, including reasonable attorneys’ fees.

6. PRIVACY AND SECURITY OF DATA

6.1 Privacy Policy

Tiny’s privacy policy (the “Privacy Policy”) is detailed on the Tiny’s website at https://www.tiny.cloud/legal/privacy/. The Subscriber has read the Privacy Policy and associated Cookies Policy and accepts their contents. The Subscriber acknowledges that usage of the Subscription Services may involve collation, retention and storage of personal data.

6.2 Data Security

The parties shall comply with the terms and conditions regarding data security which are set forth in Schedule B.

6.3 Subscriber Account, Password & Security

Upon completing the registration process, Subscriber shall receive credentials to allow Subscriber to use Subscription Services. The use of some Subscription Services requires a secure passcode (“API Key”), which is directly associated with Subscriber’s account. Subscriber is responsible for maintaining the confidentiality of the account (including the API Key) and is fully responsible for all activities that occur thereunder. Subscriber is not permitted to use another account without permission. Subscriber agrees to immediately notify Tiny of any unauthorized use of Subscriber’s account or any other breach of security. Tiny is not liable for any loss or damage arising from Subscriber’s failure to comply with this Section 6. Subscription Services may prevent Subscriber from accessing the Subscriber Services until its identity can be confirmed if an account designation is used to access Subscription Services from more than one location or from multiple locations in sequence at once.

7. AVAILABILITY AND SUPPORT

7.1 System Availability

Tiny will exert commercially reasonable efforts to make Subscription Services available at least 99% during each calendar month of the Subscription Period; provided, however, that unavailability due to planned and emergency maintenance, as well as due to Force Majeure events (see Section 10.9 below), shall not count as downtime. System unavailability for the purposes of maintenance and upgrade will be scheduled if required early Monday mornings (US East Coast time). All planned outages will be advised on the Tiny website or via email prior to the event.

7.2 Updates

Tiny will provide Subscriber Services updates when available and at its discretion. Tiny is under no obligation to develop any future functionality or enhancements. If an update for Subscriber Services is made available, Tiny may, consistent with its then-current practices, either: (a) automatically replace the previous version with the updated version; or (b) allow continuing access to the existing version for a Tiny-specified period. Where practical, Tiny will schedule Subscriber Services updates during non-business hours and will provide customers with advance notice on the login screen. Updates do not include packages, modules or bundles of features which are separately priced and marketed by Tiny.

7.3 Technical Support

7.3.1 Nature of User Support

Tiny offers two levels of technical support (“Support”) under this Agreement: Essential Support and Professional Support. The level of Support Subscriber is entitled to is reflected in the Order.

During the Subscription Period, Tiny will provide Support for Defects in the operation of the Subscription Services (a “Defect” occurs when the Subscription Services do not operate in material conformity with the Documentation) in accordance with Schedule A.

7.3.2 Access to Support

Tiny will provide Subscriber access to the Tiny Technologies Online Support Center located at https://support.tiny.cloud/ where Subscriber will be provided access to Documentation, community forums and a web-based support form to submit a support case.

7.3.3 Support Conditions

Tiny’s obligation to provide Support is conditioned upon the following:

Subscriber makes reasonable efforts to solve the problem after consulting with Tiny;
Subscriber provides Tiny with sufficient information and resources to correct the problem; and
Subscriber procures, installs and maintains all equipment necessary to operate Subscription Services.

7.3.4 Service Exclusions

Tiny is not obligated to provide Support in the following situations:

the problem is caused by Subscriber’s negligence, hardware malfunction or other causes beyond the reasonable control of Tiny;
the problem is attributed to third party software not licensed through Tiny; or
Subscription Fees have not been paid by Subscriber.

7.4 Changes to Subscription Services

Tiny may change or discontinue the Subscription Services or change or remove features or functionality of the Subscription Services from time to time.

8. WARRANTY AND LIABILITY

8.1 Warranty and Disclaimers

Tiny warrants, for the Term of each Order, and conditioned on Subscriber’s use of the Subscription Services in compliance herewith, that the Subscription Services will perform in all material respects in accordance with the Documentation. In the event that Tiny breaches the warranty above and is notified in writing promptly thereof, then Tiny will exert commercially reasonable efforts to remedy the non-conformity within a commercially reasonable period of time. If unable to do so, then Subscriber’s sole and exclusive remedy will be to terminate the applicable Order and receive a refund of pre-paid subscription fees for the unused remainder of the then-current subscription term.

EXCEPT FOR THE WARRANTIES IN SECTION 8.1 ABOVE, TINY MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, AND EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TINY PROVIDES ANY TRIAL SUBSCRIPTION LICENSE OR FREE SUBSCRIPTION LICENSE ON AN “AS-IS” BASIS WITH NO WARRANTIES.

8.2 Limitation of Liability

IN NO EVENT SHALL TINY OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS, LOST DATA OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE AGGREGATE LIABILITY OF TINY AND ITS SUPPLIERS UNDER THIS AGREEMENT SHALL APPLY SEPARATELY TO EACH ORDER AND SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER FOR THE SUBSCRIPTION SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY SUBSCRIBER THEREUNDER. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE, SHALL APPLY TO ALL CAUSES OF ACTION AND SHALL APPLY EVEN IF A PARTY SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF SUBSCRIBER RECEIVES THE SUBSCRIPTION SERVICES FOR NO FEE FOR A TRIAL PERIOD OR ANY OTHER FREE PERIOD, THEN IT SHALL HAVE NO RIGHT TO RECOVERY OF ANY DAMAGES FROM TINY.

8.2 Remedies for Infringement

In the event that Tiny reasonably believes that the Subscription Services may be subject to an infringement claim, Tiny may, in its sole discretion, either: (a) substitute substantially equivalent subscription services; (b) modify the Subscription Services; or (c) terminate the license granted hereunder.

9. CONFIDENTIALITY

“Confidential Information” is non-public or trade secret information of a party which is provided to the other party hereunder. Confidential Information of Tiny includes the Subscription Services (including its underlying Software) and its related Documentation and materials, and the terms and conditions of this Agreement. The party receiving Confidential Information may use it only for the purposes for which it was provided and may not disclose it to any third party unless such third party is providing services or functions in support of a party’s exercise of its rights or performance of its obligations hereunder and is bound in writing by commercially reasonable confidentiality and limited use restrictions. The limitations on disclosure or use of Confidential information shall not apply to information which (i) is rightfully obtained by the recipient without breach of any confidentiality obligation; (ii) is or becomes known to the public through no act or omission of the recipient; (iii) the recipient develops independently without using Confidential Information of the other party; or (iv) is disclosed in response to a valid court or governmental order, provided that, in such case, the recipient shall, to the extent reasonably practicable, give the other party prior written notice to afford the other party an opportunity to contest the disclosure.

10. GENERAL

10.1 Assignment

Tiny may freely assign this Agreement without restriction. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Tiny, which may be withheld or conditioned in its absolute discretion. Subject to the foregoing, this Agreement will be binding upon and will vest to the benefit of the parties and their respective successors and assignors.

10.2 Waiver, Severability and Third Party Beneficiaries

A party’s failure to act under this Agreement shall not indicate a waiver of its right to do so at a later date. No waiver of any provision of this Agreement shall be valid unless made in writing and signed by the waiving party. If a provision is found unenforceable, the remaining provisions of this Agreement will remain in full effect and an enforceable term will be substituted reflecting the intent as closely as possible. There are no third party beneficiaries to this Agreement, including Subscriber’s Customers and internal users.

10.3 U.S. Export Restrictions

The Subscription Services may be subject to laws and regulations of the United States and other jurisdictions (“Export Laws”). Subscriber represents that it is not a sanctions target and is not on any of the relevant U.S. government lists of prohibited persons, denied parties or similar lists. Subscriber shall not, and shall ensure that its Customers and internal users do not, export, transfer or otherwise access or use the Subscription Services in any country subject to an embargo or other sanction by the United States or otherwise in violation of any Exports Laws.

10.4 Governing Law

This Agreement is governed by and construed and enforced in accordance with the substantive laws in force in the State of Delaware, USA, and in no event shall the United Nations Convention on Contracts for the International Sale of Goods govern this Agreement. The parties irrevocably submit to the exclusive jurisdiction of the State (and if jurisdiction exists) Federal Courts in Wilmington, Delaware with respect to any dispute arising out of or relating to this Agreement.

10.5 Notices

All notices must be in writing and shall be sent by first class U.S. mail, a nationally known express or overnight courier (such as FedEx, UPS or the U.S. Postal Service) or email. Subscriber may send a notice relating to this Agreement by delivery-assured service to the Legal Department, Tiny Technologies, 2100 Geng Road, Suite 210, Palo Alto, CA 94303, United States of America. Email notices to Tiny shall be sent to legal@tiny.cloud and such additional email address (if any) provided for notices in the applicable Order. Notices to Subscriber may be sent to: (i) an individual whose email address is provided in the applicable Order; or (ii) such other individual who provided his/her email address to Tiny as an administrative user of the Subscription Services. Notices shall be deemed given upon receipt thereof (as may be evidenced by a courier’s confirmation of delivery). Any notice of change in address shall also be given in the manner set forth above.

10.6 U.S. Government End Users

If Subscriber is a government body, the following shall apply: The Subscription Services are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Subscription Services” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212, the Commercial Computer Subscription Services is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to, and restrictions and limitations imposed upon, all other customers pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.

10.7 Changes to this Agreement

Tiny may revise this Agreement from time to time. In each instance, Tiny will give Subscriber at least forty-five (45) days’ advance notice of the changes. This notice: (a) will be provided in an email to an administrative user of Subscriber who provided their email address to Tiny in the Order or otherwise in connection with the Subscription Services; and (b) may point to https//www.tiny.cloud/legal/ for review of the updated Agreement. As to Subscriber, such changes will take effect at the end of the 45 day notice period except as provided below. If Subscriber does not wish to accept such changes, then Subscriber may, as its sole remedy, notify Tiny within thirty (30) days of receipt of the notice of such changes that the Agreement will terminate in thirty (30) days from Tiny’s receipt of such termination notice unless the parties resolve the issue during this 30-day period. If no such resolution occurs, then this Agreement will terminate at the end of such 30-day period.

10.8 Force Majeure

Neither party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such party’s reasonable control, such as a natural disaster, act of war or terrorism, riots, fires, acts or orders of government, labor disruption, internet or telecommunication outages or interruptions, hacking or similar incidents, or power outages.

10.9 Intellectual Property; Analytic Data

Tiny owns all rights, title and interest in and to the Subscription Services, the underlying Software, all Documentation and related materials, the Analytic Data, and all modifications or derivatives thereof. Any rights or licenses not expressly granted to Subscriber in this Agreement are expressly reserved by Tiny.

Subscriber agrees that it shall have and obtain all necessary rights and consents for Tiny to use, process and store all data provided or uploaded into the Subscription Services for the purposes of performing its obligations hereunder.

Tiny may collect and analyze data and content collected and derived from Subscriber and its Customer’s and internal users’ use of the Subscription Services and the data and content uploaded therein to determine usage volumes and trends, optimize support, improve and promote the Subscription Services and for other business purposes (collectively, “Analytic Data”); provided that such Analytic Data shall be de-identified and aggregated.

10.10 Entire Agreement

This Agreement, together with the Orders, constitutes the entire agreement between the parties concerning the Subscription Services and supersedes and replaces any prior or contemporaneous understandings and agreements regarding the subject matter hereof.

Schedule A

Tiny Support

A. SUPPORT

1. TINY SUPPORT SERVICE LEVELS

Tiny undertakes to provide Support in accordance with the following Service Levels:

Response times within the Service Hours: 2 business days. (Business days are based on Service Hours as defined in Section A.2. below).
Subscriber is entitled to two (2) Support tickets per calendar month on the Essential Plan and four (4) Support tickets per calendar month on the Professional Plan.

2. SERVICE HOURS

Tiny’s Service Hours:

California, US office: 9:00 AM to 5:00 PM Monday to Friday local time excluding US public holidays.

3. REPORTING OF DEFECTS

All Defects are to be reported by a Subscriber representative through the Tiny technical support form on the Tiny website at: https://support.tiny.cloud/. Tiny’s response to Support requests submitted by email will be delayed. After submission include the Tiny Support case number that was advised by email in response to the initial reporting.

4. APPLICATION TO SUBSCRIPTION SERVICES

Tiny’s Support for any release of the Subscription Services will end as specified:

The later of either: (a) six (6) months after the release has been superseded; or (b) eighteen (18) months after the release was made available. Fixes for Defects will be delivered as a part of the normal release process (i.e. in the next release of the Subscription Services).

Schedule B

Data Security

Tiny Technologies must comply with the principles of European Union laws, in particular, the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on free the flow of such data and the repeal of Directive 95/46 / EC (General Data Protection Regulation, GDPR) (Journal of Laws UE.L.2016.119.1) and any successor legislation, in relation to any “personal data” received by or originating from the Subscriber, to the extent that the GDPR apply to “data processors.” Subscriber grants Tiny Technologies permission to place session cookies on their computer for the duration of any session. Tiny Technologies will not place residual cookies on a Subscriber’s computer. Subscriber hereby warrants that it is aware of regional and national data privacy laws and regulations and will comply with all such laws in the use of Subscription Services. In particular, Subscriber warrants that it will not use Subscription Services in violation of any data privacy laws in the United States, Europe or elsewhere in the world. Subscriber hereby represents that it will make this warranty as long as this Agreement is in force. Subscriber is also referred to in this Schedule B as the “Customer”.

Tiny processes the following categories of Data:

Temporary in-memory Data, uploaded to, transferred through the software, posted or entered into Tiny’s Subscription Services by the Customer or by end users, but not stored,
Stored Data, stored as a result of using the Tiny Subscription Services.
Account Data, which is Data connected with creating and maintaining a customer account in accordance with this Agreement,
API Keys, which are keys used for the purpose of identifying the Tiny Subscription Services’ customer and which generate authentication credentials for programmatic use of the services. API Keys are stored in Tiny’s dashboard.

Tiny collects the following Personal Data:

For signup actions (Anonymous user becomes a customer): i. Billing, ii. Product SKU information, iii. First name, vi. Last name, v. Email
For newsletter and website chat: i. Email
For the Contact form: i. First name, ii. Last name, iii. Company, iv. Email, v. Phone.

For customers using Sales assisted custom plans, the sales team may request additional information about the customers’ business in order to provide a sales quote.

Tiny Subscription Services perform operations on and distribute Data. The Customer and end users retain all of their respective rights, title and interest in and to their Data. Tiny rights to access and use Customer’s and end users’ Data are limited to those expressly granted under this Agreement. No other rights with respect to such Data are implied. Tiny has no control over the purposes for which the Customer uses Data. Tiny is not responsible for any information that the Customer or end users add to Tiny’s Subscription Services. Tiny will not sell Data. Tiny will not otherwise share Data, other than as required to fulfill its contractual obligations to Customer.

The Customer is solely responsible for determining the suitability of Tiny’s Subscription Services for Customer’s purposes and for complying with applicable legal provisions regarding Data and its use of Tiny Subscription Services. Tiny does not endorse or assume any responsibility for any Data stored or processed in Tiny’s Subscription Services. If the Customer intends to store any Data in Tiny’s Subscription Services, the Customer does so at its own risk. The Customer expressly relieves Tiny from any and all liability arising from Customer’s use of any Data, and the Customer agrees that Tiny shall not be held liable for any loss or damage of any sort arising from or in relation to the Customer’s use of any Data stored or processed in Tiny’s Subscription Services.

The Customer is responsible for:

protecting the security of Customer’s (or end users’) Data, including any Data which may have been obtained from Customer’s employees, customers or other third parties,
protecting the privacy of any end users’ Data (including implementing a privacy policy compliant with applicable law),
providing any necessary notices to end users, and obtaining any legally-required consents from end users concerning their use of Tiny’s Subscription Services,
ensuring that Customer’s and end users’ use of Tiny’s Subscription Services will not violate this Agreement and any applicable law,
the development, content, operation, maintenance, and use of Customer’s Data,
obtaining any consents necessary to enable Tiny to exercise the rights concerning Data for the purposes relating to the performance of this Agreement, in each case in compliance with applicable law,
reviewing, accepting, and complying with any terms and other restrictions applicable to Data,
abiding by data protection legislation, including relevant provisions and laws regarding Data subject to all the legal obligations imposed upon him pursuant to relevant legislation.

The Customer agrees that Tiny may collect, use, store and transmit technical and technical-related information about Customer or Users’ use of the Subscription Services when in anonymized or de-identified format, including, but not limited to, Internet protocol addresses, hardware identification, operating system, application software, peripheral hardware, and usage statistics, to facilitate the provision of updates, support, invoicing and online Services by Tiny (“Usage Data”) . Tiny may use Usage Data to track and manage its infrastructure, network storage, and software for billing, capacity planning and other product forecasting, improvement and development purposes. Tiny may further share Usage Data with Tiny’s Affiliates and third party providers to fulfill its contractual obligations towards them.

The Right to Access and Retrieve Data

Except as expressly provided otherwise in this Agreement, Tiny hosts all Data posted, entered into and/or stored in Tiny’s Subscription Services, including Customer’s Personal Data, on Amazon Web Services (AWS). In the future, Tiny may host the Data in the computing environment of another third party hosting provider which is internationally reputable, such as Microsoft Azure or Google Cloud, and will notify Customer of such occurrence. Details of the security policy of AWS can be found at https://aws.amazon.com/privacy/ and in no way shall the Customer hold Tiny responsible for the quality of service provided by AWS or such other hosting provider authorized above.

Customer’s Personal Data

As far as the applicable data privacy laws are concerned, regarding the provision of Tiny’s Subscription Services, Tiny acts as a Data Processor on Customer’s (the Data Controller’s) behalf with regard to the Data posted, entered into and/or stored in Tiny’s Subscription Services to the extent it constitutes Personal Data. Tiny, as the processor, will process Personal Data entrusted by the Customer, within the scope and purpose stipulated in this Agreement.

Tiny’s access to Data, including Customer’s Personal Data, is limited to the scope and the principles established under this Agreement. The Customer entrusts Tiny processing of Customer’s Personal Data that may be entered by the Customer or Active Users into Tiny’s Subscription Services, for the duration of this Agreement plus any additional post-termination period during which Tiny provides the Customer with access to stored Data in accordance with Section THE RIGHT TO ACCESS & RETRIEVE DATA, and only within the scope and purpose indicated by this Agreement. The scope of processing includes transfer of Customer’s Personal Data entrusted by the Customer to Tiny’s Subscription Services.

Tiny will notify the Customer without undue delay, and no later than 72 hours after discovery, of any inadvertent exposure or loss of Customer’s Personal Data, taking into account any applicable law, regulation, or governmental request. To the extent permitted by law, Tiny will inform the Customer without undue delay of requests from Customer’s Personal Data subjects exercising their data subject rights (e.g. rectification, deletion and blocking data) addressed directly to Tiny regarding Customer’s Personal Data, and will not process such requests except as requested by Customer (except to the extent required by law). If a government or an independent public authority demands access to Customer’s Personal Data, Tiny will make commercially reasonable efforts to notify the Customer prior to disclosure unless prohibited by law. Tiny undertakes to process the entrusted Customer’s Personal Data only to the extent and purpose stipulated in this Agreement. Tiny undertakes to maintain, during the entire period in which Data is processed, all technical and organizational measures provided by law to protect personal data that the Customer has entrusted to Tiny to processing. Tiny obliges all of its personnel authorized to process Customer’s Data to keep the data confidential and prohibits them to process such Customer’s Personal Data for any other purposes, except on instruction from the Customer (or other data controllers authorized by the Customer) or unless required by applicable law.