Tiny Self-Hosted Software License Agreement (Enterprise Users)

Ephox Corporation DBA Tiny Technologies, Inc. (“Tiny”) having offices at 2100 Geng Road, Suite 210, Palo Alto, CA 94303, United States of America

TINY SELF-HOSTED SOFTWARE LICENSE AGREEMENT

Effective July 17, 2019

Use this version of the Tiny Self-Hosted Software License Agreement if you will be using the software in a single enterprise and not in an OEM and/or a SaaS application.

NOTICE TO USER

THIS TINY SELF-HOSTED SOFTWARE LICENSE AGREEMENT (‘SELF-HOSTED SOFTWARE LICENSE AGREEMENT’) GOVERNS YOUR USE OF THE SOFTWARE ACCOMPANYING IT. BEFORE CLICKING ‘ACCEPT’ PLEASE CAREFULLY READ THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU (‘LICENSEE’, ‘YOU’ OR ‘YOUR’) ARE ACQUIRING A LICENSE TO USE THE ACCOMPANYING SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT, PLEASE DO NOT CLICK ‘ACCEPT’. BY CLICKING ON ‘ACCEPT’ YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT AND YOU WILL BE ACQUIRING A LICENSE TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF YOU RECEIVED THE SOFTWARE AS PART OF A NEGOTIATED LICENSE SELF-HOSTED SOFTWARE LICENSE AGREEMENT WITH TINY TECHNOLOGIES, THE TERMS AND CONDITIONS OF SUCH NEGOTIATED LICENSE SELF-HOSTED SOFTWARE LICENSE AGREEMENT SHALL SUPERSEDE THE TERMS AND CONDITIONS OF THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT TO THE EXTENT THEY ARE INCONSISTENT. IN THE EVENT THAT A SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY USES OR INSTALLS THE SOFTWARE ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH SYSTEM INTEGRATOR, CONSULTANT, CONTRACTOR OR OTHER PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF AND YOU WILL BE DEEMED TO HAVE ACCEPTED ALL OF THE TERMS AND CONDITIONS OF THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT AS IF YOU HAD USED OR INSTALLED THE SOFTWARE. NOTICE TO SYSTEM INTEGRATORS, CONSULTANTS, CONTRACTORS AND OTHER PARTIES WHO DO NOT INTEND TO BE END USERS OF THE SOFTWARE: IF YOU PURCHASE, USE, OR INSTALL THE SOFTWARE AS AN AGENT ACTING ON BEHALF OF THE LICENSEE, THEN, UNLESS YOU HAVE ENTERED INTO A SEPARATE SELF-HOSTED SOFTWARE LICENSE AGREEMENT WITH TINY TECHNOLOGIES, (1) YOU AGREE TO DELIVER THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT TO THE LICENSEE PRIOR TO PROVIDING THE LICENSEE ACCESS TO THE SOFTWARE, AND (2) YOU AGREE THAT YOU WILL NOT RETAIN ANY COPIES OF THE SOFTWARE. OTHERWISE, YOU WILL BE DEEMED TO BE THE USER OF THE SOFTWARE AND BOUND BY THE TERMS AND CONDITIONS OF THIS SELF-HOSTED SOFTWARE LICENSE AGREEMENT.

TINY TECHNOLOGIES MAY VARY THIS LICENSE FROM TIME TO TIME. THE LICENSE THAT APPLIES TO YOU AND YOUR ORGANIZATION IS THE VERSION THAT WAS PRESENTED WHEN YOU LAST CLICKED THE ‘I AGREE’ BUTTON AND DOWNLOADED THE SOFTWARE.

USE OF THE SOFTWARE FOR EVALUATION PURPOSES

IF YOU INTEND TO USE THE SOFTWARE FOR EVALUATION PURPOSES THEN THIS Self-Hosted Software License Agreement PERMITS YOU TO USE THE SOFTWARE ONLY FOR THOSE EVALUATION PURPOSES AND DOES NOT CONSTITUTE A LICENSE FOR USE BEYOND THE EVALUATION PERIOD.

1. DEFINITIONS

The following definitions of terms apply to this Self-Hosted Software License Agreement and any Product License issued under this Self-Hosted Software License Agreement:

“Authorized” means a Licensee is entitled to Use the Software for a specific purpose or purposes or to access certain services provided by Tiny. Licensee is specifically Authorized by one of the following methods (“Authorized Method”):
1. in a Licensee-Signed Quote;
2. in a receipt issued by Tiny; or
3. in an agreement signed with Tiny.
“Authorized Method” means one of the methods of acknowledgement of payment listed in the definition of “Authorized”.
“CPU” means a single central processing unit of a machine with up to 2 cores. For multi-core CPUs, each 2 cores will count as a single CPU.
“Customer” is any person or entity who receives a right to use the Licensee Product or Licensee Service for its own use and not for resale or further sublicensing, through a license granted by Licensee.
“Customer Agreement” means a standard form agreement under which a Customer is licensed by Licensee to use the Licensee Subscription Service or Licensee Standalone Product.
“Development Environment” means the technical environment in which You use the Software for testing and development purposes only.
“Developer” is any person who writes computer code that is incorporated in Licensee software, Licensee Subscription Service or Licensee Standalone Products.
“Disaster Recovery Environment” means Your technical environment designed solely for You to respond to an interruption in services due to an event that creates an inability to provide critical business functions for a material period of time.
“Domain Names” means the Internet host name through which a Web site is accessible to Users.
“Effective Date” means, unless otherwise specified in the Self-Hosted Software License Agreement, the date that You downloaded the Software.
“Internal Network” means Your private, proprietary network resource accessible only by employees and individual contractors of a specific corporate enterprise or similar business entity. Internal Network specifically excludes the Internet. Connection by secure links such as VPN or dial up to Your Internal Network is considered use over an Internal Network.
“License Key” means a sequence of numbers and characters used to unlock the Licensed Software.
“Licensed Software” means executable code versions of Tiny’s software listed in an Authorized Method, and all updates, upgrades, new versions, new releases, error corrections, or Successor Software Products that Tiny may provide to Licensee.
“Licensee-Signed Quote” means an official quote issued by Tiny that has been signed and returned to Tiny by the Licensee prior to the Use of the Software.
“Licensee Subscription Service” means the Software-as-a-Service (“Subscription Service”) that will be combined with the Licensed Software specifically identified in the Authorized Method.
“Licensee Standalone Product” means the software product that will be combined with the Licensed Software specifically identified in the Authorized Method.
“Permitted Number” means the authorized number of CPUs, Development Servers, Servers, PVUs, Domain Names, Applications, Users and/or Customers as indicated on an invoice provided by Tiny.
“Processor” has the same meaning as “CPU”.
“Product” means a software product produced or sold by Tiny.
“Product License” means a license issued under this Self-Hosted Software License Agreement to use a specified Tiny software product under the conditions specified in the Product License.
“Production Environment” means the technical environment in which You use the Software for Your business purposes.
“Production Purposes” means any use purpose other than for evaluation purposes prior to purchase of the Software, or in development or staging environments.
“Release” means a version of the Licensed Software or Sub-Licensed Software that is designated by the first 2 digits in the numbering nomenclature used by the Licensed Software or Sub-Licensed Software version numbering. Any digits that follow the first 2 will designate the maintenance level of the particular release.
“Server” means a network server that contains one or more CPUs.
“Software” means (a) all the contents of the files with which this Self-Hosted Software License Agreement is provided, including but not limited to (i) Tiny Technologies or third party computer information or software and (ii) related explanatory written materials or files (“Documentation”); and (b) upgrades, modified versions, Major Versions, additions, and copies of the Software, if any, licensed to You by Tiny (collectively, “Updates”).
“Standalone Product” means a Licensee-provided software application (“Licensee Product”) where the Licensee supplies their Customer with a standalone software application. The definition of “Standalone Product” does not include any Licensee Product where the operation of the Licensee’s Product on a Customer’s Server requires access to the Tiny Software on the Licensee’s Server. “Standalone Product” does not include Licensee Product provided in a Subscription Service application.
“Subscription Fees” means the fees payable under Section 3 and as specified in an Authorized Method.
“Subscription Period” means a subscription period of one year as specified in an Authorized Method.
“Successor Software Product” means any new version of Tiny software products distributed as a separate, renamed, or replacement product, or group of products, as designated by a change of version number, or a change in the name of software products, the major functionality of which is substantially similar to that contained in the Licensed Software, even if such product includes additional features, architecture and functionality not contained in the Licensed Software. Any software products sold separately from the Licensed Software products listed in an Authorized Method are excluded from this definition.
“Technical Support” means reasonable technical support (as more specifically set forth in Section 5) for the Software.
“Tiny Licensee” means an individual or organization that has a current and valid agreement with Tiny to Use, sell the Software or incorporate the Software in an application.
“Tiny Product” means Licensed Software and Documentation provided by Tiny.
“Updates” means Releases, minor upgrades, modified versions and additions to the Software.
“Upgrade & Support” means the service under which Tiny provides support, maintenance and upgrades to the Licensee as set forth in Section 5.
“Use” means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation and the terms and conditions of this Self-Hosted Software License Agreement.
“User” means any and all (i.e. non-concurrent) natural persons (i.e., not a corporation or other legal entity) who are authorized by You to access and use the Software for Your own internal business processes.
“VPN” means a private communications network generally used within enterprises to communicate over a public network using secure protocols.
“Web Content Manager Instance” means IBM Web Content Manager Server(s) dedicated to managing a specific set of web content libraries.
“Workstation” means a computer workstation or personal computer that allows the Software to only be accessed by a single processor and that is not used as a network server.

2. GRANT OF LICENSE AND RESTRICTIONS

2.1

Tiny grants You a limited, non-perpetual and non-transferable license to use the Software listed in an Authorized Method and as defined on the Tiny website (http://www.tiny.cloud) subject to the terms and conditions of this Self-Hosted Software License Agreement and is Authorized to Use. Tiny and its suppliers shall at all times retain ownership of all Software including any documentation and any copies thereof.

2.2 Reserved

2.3

Backup and Disaster Recovery. You may make and install a reasonable number of copies of the Software for backup and archival purposes provided that all titles, trademark symbols, copyright symbols and legends, and other proprietary markings are reproduced. Tiny shall retain all rights and title to the backup or archival copy. You may only use such archival copies solely in the event that the primary copy has failed or is destroyed, but in no event may You use such copies concurrently with Your Production Environment. You may also install copies of the Software in a Disaster Recovery Environment for use solely in disaster recovery and not for production, development, evaluation or testing purposes other than to ensure that the Software is capable of replacing the primary usage of the Software in case of a disaster.

2.4 Restrictions:

You agree that You will not Yourself, or through any parent, subsidiary, affiliate, agent or other third party:

sell, lease, license, sublicense, encumber or otherwise transfer any right in any portion of the Software or documentation;
decompile, disassemble, or reverse engineer any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software;
create any derivative work (as defined in the United States copyright Act of 1976, Title 17 USC Section 101 et. Seq.) based on the Software;
without the express permission of Tiny or as provided for in Section 2.2 use the Software to provide direct processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a “service bureau” basis or otherwise use or allow others to use the Software for the benefit of any third party;
use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other U.S. government agency; and
prevent the software licensing information from being displayed to any user of the Software.

2.5 No Other Rights Granted:

Except as expressly set forth herein, Tiny grants and You receive no other rights or licenses to the Software, derivative works (as defined in the United States Copyright Act of 1976, Title 17 USC Section 101 et. Seq.) or any intellectual property rights related to the Software whether by implication, estoppel or otherwise.

2.6 Special Conditions Relating to Specific Tiny Products:

Specific restrictions are placed on the use of certain Tiny products. These restrictions are presented in the attached Schedule B “Product Schedules”. Licensee must abide by these restrictions.

2.7 Evaluation Period:

The Software may be used for evaluation purposes. Trial use of the Software for evaluation may not exceed thirty (30) days unless you have specific express permission of Tiny.

3. PRE-RELEASE SOFTWARE ADDITIONAL TERMS

3.1

If the Software accompanying this Self-Hosted Software License Agreement is pre-commercial release Software (“Pre-release Software”), then the following Section applies.

3.2

You acknowledge that the Software that You have received is a Pre-Release Software version, does not represent final product from Tiny, and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to You as is and Tiny disclaims any warranty or liability obligations to You of any kind. Where legal liability cannot be excluded, but it may be limited, Tiny Technologies liability and that of its suppliers shall be limited to the sum of fifty dollars (U.S. $50) in total.

3.3

You acknowledge that Tiny has not promised or guaranteed to You that Pre-release Software will be announced or made available to anyone in the future, that Tiny has no express or implied obligation to You to announce or introduce the Pre-release Software and that Tiny may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, You acknowledge that any research or development that You perform regarding the Pre-release Software is done entirely at Your own risk. During the term of this Self-Hosted Software License Agreement, if requested by Tiny Technologies, You will provide feedback to Tiny regarding testing and use of the Pre-release Software, including error or bug reports.

3.4

Upon receipt of a later unreleased version of the Pre-release Software or release by Tiny of a publicly released commercial version of the Software, whether as a stand-alone product or as a part of a larger product, You agree to abide by the terms and conditions of the Self-Hosted Software License Agreement for any such later versions of the Pre-release Software.

4. PAYMENT TERMS

4.1 Subscription Fees for Website Purchases

This subsection provides the terms for Subscription Fees payable by Licensee purchasing directly from the Tiny website. Licensee agrees during the Subscription Period to pay Tiny the Subscription Fees specified in the Subscription Form (“Subscription Fees”). Licensee explicitly gives Tiny authorization to auto-renew Software license until cancelled by Licensee or Tiny. The Subscription Fees are payable in United States dollars. A valid form of payment, such as a credit card, PayPal, or Tiny-approved automatic payment, is required to subscribe to the Use of the Software. The Subscription Fees are payable in advance for the Subscription Period. For a Subscription that renews monthly, Subscription Fees are paid in advance on a month-to-month basis and will be automatically charged unless Licensee cancels the Subscription before the month begins. For a subscription that renews annually, Subscription Fees will be paid in advance for each subsequent year unless Licensee cancels the Subscription before the beginning of the subsequent year.

4.2 Subscription Fees for Negotiated Purchases

This subsection provides the terms for fees payable by Licensee purchasing the Software through a negotiated sale. Licensee agrees during the Subscription Period to pay Tiny the Subscription Fees specified in the Authorized Method (“Subscription Fees”). The Subscription Fees are payable in United States dollars. A valid form of payment, such as a credit card, PayPal, or Tiny-approved automatic payment, is required to subscribe to the Use of the Software. The Subscription Fees are payable in advance for the Subscription Period. Tiny agrees to invoice Licensee according to Tiny standard terms. The Tiny invoice shall be subject to net thirty (30) day term(s). Subscription Fees are to be paid in advance.

4.3 Payment Conditions

Subscription Fees are non-refundable and non-transferable. When a payment or automatic payment cannot be processed, Licensee shall have thirty (30) days from the renewal date to submit payment in order to retain LIcense. Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1.5%) per month or, if less, the maximum rate permitted by law.

Failure to pay the Subscription Fees, except to the extent subject to good faith dispute, shall constitute a material breach of this Self-Hosted Software License Agreement.

4.4 Taxes

Licensee shall pay any and all sales, use and other taxes of any kind, including any GST, VAT and customs levies or charges. In connection therewith, Licensee hereby agrees to indemnify and hold harmless Tiny from and against the amount of any tax, interest and penalties (other than corporate income taxes payable by Tiny based on or due as a result of any amounts paid to Tiny hereunder.

4.5 Reports

Licensee shall deliver to Tiny reports as specified in an Authorized Method certified by an officer of Licensee in such form and containing such information as shall be described in an Authorized Method.

5. UPGRADE & SUPPORT TERMS AND CONDITIONS

5.1 Technical Support

5.1.1 Nature of User Support

Tiny offers two levels of technical support service (“Technical Support”) to you under this Self-Hosted Software License Agreement: Professional Support, and Enterprise Support. The level of Support you are entitled to is shown in the Authorized Method.

Support covers the use of the Software. During the Subscription Term Tiny will provide technical support for problems in the operation of the Software in accordance with the following conditions:

Professional Support: You are entitled to Support in accordance with the provisions of Schedule A.
Enterprise Support: You are entitled to Support in accordance with the provisions of Schedule A.

5.1.2 Entitlement to Support

You may or may not be entitled to Technical Support or to apply new Releases. Your entitlement is stated in the Authorized Method. If you are not Authorized to receive Support or to apply new Releases this Section does not apply to You.

5.1.2 Provision of Support to Specifically Authorized Licensees

Tiny shall provide to Authorized Licensee all Releases of the Licensed Software and the Technical Support described in this Section 5 so long as Licensee has paid all Subscription Fees specified in an Authorized Method. All Releases shall deem to constitute Licensed Software for the purposes of this Self-Hosted Software License Agreement.

5.1.3 Access to New Releases & Upgrades to Specifically Authorized Licensees

You may not be Authorized to use the Tiny Support Service but may be Authorized to apply Releases and Upgrades of the Licensed Software. If Licensee is specifically Authorized and so long as Licensee has paid all Subscription Fees specified You may apply Releases and Upgrades.

5.1.4 Access to Support

Tiny will provide You with access to the Tiny Online Support Center located at https://www.tiny.cloud where You will be provided access to downloads, documentation, community forums and a Web-based support form to submit a support case. Tiny’s specific support obligations are specified in the Schedule A of this Self-Hosted Software License Agreement.

5.1.5 Support Conditions

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

You make reasonable efforts to solve the problem after consulting with Tiny;
You provide Tiny with sufficient information and resources to correct the problem either at Tiny Technologies’ offices or via remote access to Your site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem;
You promptly install all Updates; and
You procure, install and maintain all equipment necessary to operate the Software.

This Self-Hosted Software License Agreement does not extend to the operation of third party software and Tiny will not provide You with generic consultation, assistance, or advice.

Tiny’s specific obligations for support are set forth in Schedule A.

5.2 Updates

Tiny will make available to You Updates that Tiny releases during the Support Period. Updates will be advised and made available through https://www.tiny.cloud. Solely Tiny determines the features and the release schedule of all Updates.

5.3 Maintenance

During the Support Period You may report any Software problem or error to Tiny. If Tiny in its reasonable discretion determines that a reported, reproducible, material error in the Software exists that significantly impairs the usability and utility of the Software, Tiny agrees to use reasonable commercial efforts to correct the problem or error and to provide an Update to resolve the problem or error.

5.4 Service Exclusions

Tiny is not obligated to provide technical support in the following situations:

the Software has been changed, modified or damaged;
the problem is caused by Your negligence, hardware malfunction or other causes beyond the reasonable control of Tiny;
the problem is traced to a third party software not licensed through Tiny Technologies; or
You have not paid Subscription Fees when due.

5.5 Support for Previous Versions

Tiny has no obligation to support or maintain any Release of Software outside of the terms stated in Schedule A.

6. TERM AND TERMINATION

6.1 Term

The term of this Self-Hosted Software License Agreement will begin on the Effective Date and will expire in accordance with the selected Subscription Period shown in the Authorized Method, or otherwise in accordance with this Section 6, unless the parties otherwise mutually agree. The Subscription Period will auto-renew and Subscription Fees will be payable provided either party does not advise termination of the Self-Hosted Software License Agreement at least 30 days before the end of the current Subscription Period. Payment is in advance for the Subscription Period and is not refundable upon termination unless terminated for breach by Tiny Technologies.

6.2 Termination on Material Breach

This Self-Hosted Software License Agreement may be terminated by either party at any time in the event that (a) the other party is notified in writing that it is in material breach of the terms or conditions of this Self-Hosted Software License Agreement; and (b) such other party fails to remedy such breach within thirty (30) days following such notice or three (3) days following such notice if the breach is a failure by Licensee to pay any fee required under Section 3 of this Self-Hosted Software License Agreement.

6.3 Termination on Financial Difficulty

To the extent allowed by law, Tiny may terminate this Self-Hosted Software License Agreement effective immediately upon written notice to Licensee if Licensee (a) files a voluntary petition in bankruptcy or otherwise seeks protection under any law for the protection of debtors; (b) has a proceeding instituted against it under any bankruptcy law that is not dismissed within sixty (60) days; (c) is adjudged as bankrupt; (d) has a court assume jurisdiction of its assets under a reorganization act; (e) has a trustee or receiver appointed by a court for all or a substantial portion of its assets; (f) becomes insolvent; (g) suspends or ceases to do business; (h) makes an assignment of its assets for the benefit of its creditors; or (i) admits in writing its inability to pay its debts as they become due. In the event of Licensee’s bankruptcy, this Self-Hosted Software License Agreement shall be accepted or rejected within a reasonable time, but in no event in less than sixty (60) days from the filing of the bankruptcy petition.

6.4 Use of Licensed Software

Licensee shall only use the Software where all due Subscription Fees have been paid.

6.5 Survival

Notwithstanding any other provision of this Self-Hosted Software License Agreement, if this Self-Hosted Software License Agreement is terminated for any reason or expires, the following provisions shall survive and continue according to their terms: The provisions of Sections 7-11, and 12, and any other provisions which by their nature and purpose should be reasonably deemed to survive.

6.6 Reserved

7. AUDIT

Upon Tiny’s reasonable belief that any term of this Self-Hosted Software License Agreement has been violated, Licensee agrees to allow an independent third party to inspect Licensee’s site, books and records to determine whether Licensee has complied with the terms of this Self-Hosted Software License Agreement. The third party will be chosen by Tiny and approved by Licensee, whose approval must not be unreasonably withheld. The reviews will occur at mutually agreeable times during normal business hours. The third party will be instructed to keep all information learned strictly confidential except as it relates to breaches of this Self-Hosted Software License Agreement. If such an audit discloses a violation of this Self-Hosted Software License Agreement Licensee agrees to pay the cost of the audit plus interest on the deficiency from the time due until paid at the lesser of eighteen percent per annum or the maximum allowed by law.

8. WARRANTIES AND LIMITATIONS BY TINY

8.1 Performance Warranty

Tiny warrants to Licensee that the Licensed Software will perform substantially in accordance with its Documentation for a period of ninety (90) days following the Effective Date. In the event of any breach of this warranty, Licensee’s sole and exclusive remedy are, at Tiny’s option, for Tiny to (a) modify the Licensed Software to enable it to operate in accordance with the warranty provided in this Section 8, (b) replace the Licensed Software with software that operates in accordance with the warranty provided in this Section 8, or (c) refund all unused amounts paid to Tiny by Licensee as depreciated on a straight-line sixty (60) month basis and terminate this Self-Hosted Software License Agreement without further liability.

8.2 Warranty Disclaimer

Except as specifically set forth in this Self-Hosted Software License Agreement, Tiny Technologies disclaims all warranties, whether express or implied, concerning the Licensed Software, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, or any warranties arising out of conduct or industry practice.

8.3 Intellectual Property Infringement Indemnification

Tiny agrees, at its own expense, to defend or, at its option, to settle, any claim or action brought against Licensee to the extent it is based on a claim that the Licensed Software as used within the scope of this Self-Hosted Software License Agreement infringes or violates any United States patent, copyright, trademark, trade secret or other proprietary right of a third party, and Tiny will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys’ fees) that are attributable to such claim or action and which are assessed against Licensee in a final judgment. Licensee agrees that Tiny shall be released from the foregoing obligation unless Licensee provides Tiny with: (a) prompt written notification of the claim or action; (b) sole control and authority over the defense or settlement thereof; and (c) all available information, assistance and authority to settle and/or defend any such claim or action. If any Licensed Software becomes, or in the opinion of Tiny is likely to become, the subject of an infringement claim or action, Tiny may at its sole option: (i) procure, at no cost to Licensee, the right to continue using the Licensed Software; (ii) replace or modify the Licensed Software to render it non-infringing, provided there is no material loss of functionality; or (iii) if, in Tiny’s reasonable opinion, neither (i) nor (ii) above are commercially feasible, terminate the license and refund all unused amounts paid to Tiny by Licensee for such Licensed Software as depreciated on a straight-line sixty (60) month basis. Tiny will have no liability under this Section 8.3 for any claim or action where: (A) such claim or action would have been avoided but for modifications of the Licensed Software, or portions thereof, made after delivery to Licensee; (B) such claim or action would have been avoided but for the combination or use of the Licensed Software, or portions thereof, with other products, processes or materials not supplied or specified in writing by Tiny; (C) Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (D) Licensee’s use of the Licensed Software is not strictly in accordance with the terms of this Self-Hosted Software License Agreement. Licensee will be liable for all damages, costs, expenses, settlements and attorneys’ fees related to any claim of infringement arising as a result of (A)-(D) above. The foregoing obligations constitute Tiny’s sole and exclusive obligations toward Licensee, and Licensee’s sole and exclusive remedy, with respect to any intellectual property claim or action brought against Licensee as aforesaid. Tiny shall have no other indemnification obligations of any kind under or in connection with this Self-Hosted Software License Agreement.

9. DISCLAIMER

Except as expressly set forth in section 6 no other warranty, express or implied, is made with respect to the software or services provided herein. Tiny specifically disclaims any other representations and warranties including without limitation any implied warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights and those arising from a course of dealing or performance or usage of trade. Tiny specifically disclaims any representation and warranty that the software will be error free or will function uninterrupted, that any errors or defects in the software can or will be corrected, that any such correction can or will be made in a timely manner, that the software will operate in the combinations which You may select for Your use, will produce the results You desire, or that the software functionality will meet Your requirements.

10. LIMITATION OF LIABILITY

Neither of Tiny (nor Tiny’s licensors) shall be liable under this Self-Hosted Software License Agreement for lost profits or for consequential, special, indirect, incidental or exemplary damages, regardless of the legal theory on which they are based, even if Tiny has been advised of the possibility of such damages. Tiny’ aggregate liability in connection with any claims arising out of or relating to this Self-Hosted Software License Agreement or the use of the Licensed Software shall not be more than the amount paid by Licensee to Tiny for the Licensed Software under the terms of this Self-Hosted Software License Agreement. This limit, which includes all costs and fees, shall apply to any and all claims regardless of the legal theory on which they are based. The foregoing limitations of liability will apply even if the above stated warranty fails of its essential purpose. Each party acknowledges that the Subscription Fees set forth in this Self-Hosted Software License Agreement reflect the allocation of risk agreed upon and deemed reasonable by the parties and that they would not enter into this Self-Hosted Software License Agreement without these limitations of liability.

11. OWNERSHIP OF INTELLECTUAL PROPERTY

The Licensed Software is licensed, not sold. Tiny and its licensors hold all right, title, and interest, including all intellectual property rights, in and to the Licensed Software, subject only to any rights held by Tiny Technologies’ licensors or granted by Tiny. Tiny and Tiny’s licensors retain all right, title, and ownership to the Licensed Software and the Tiny Technologies Marks and no right, title, or interest in the Licensed Software or the Tiny Marks shall pass to Licensee except as may be specifically set forth in this Self-Hosted Software License Agreement. The Licensed Software (including, without limitation, any images, scripts, applets, animations, video, audio, music and text incorporated into the Software) as well as any accompanying written materials is owned by Tiny and is protected by United States copyright laws and international treaties, and contains confidential information and trade secrets.

12. GENERAL

12.1 Assignment

Neither this Self-Hosted Software License Agreement nor any rights under this Self-Hosted Software License Agreement may be assigned or otherwise transferred by You, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Tiny, which shall not be unreasonably withheld. Subject to the foregoing, this Self-Hosted Software License Agreement will be binding upon and will vest to the benefit of the parties and their respective successors and assignors. Notwithstanding the foregoing, no transfer or assignment of Your rights hereunder shall be effective unless and until the purported assignee agrees in writing to be bound by all of Your obligations hereunder.

12.2 Waiver

A party’s failure to act under this Self-Hosted Software License Agreement shall not indicate a waiver of the party’s rights under this Self-Hosted Software License Agreement. No waiver of any provision of this Self-Hosted Software License Agreement shall be valid unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Self-Hosted Software License Agreement or the waiver by either party of any breach of this Self-Hosted Software License Agreement shall not prevent any subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach.

12.3 U.S. Government End Users

The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212, the Commercial Computer Software is being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

12.4 US Export Restrictions

The Software is subject to certain export restrictions of the United States Government. If You are (a) in a country to which export from the United States is restricted for anti-terrorism reasons, or a national of any such country, wherever located, (b) in a country to which the United States has embargoed or restricted the export of goods or services, or a national of any such country, wherever located, or (c) a person or entity who has been prohibited from participating in United States export transactions by any agency of the United States Government, then You may not install, download, access, use, or license the Software. By accepting this License, You warrant and represent to Tiny Technologies that (1) You do not match the criteria set forth in (a), (b), or (c) above, (2) that You will not export or re-export the Software to any country, person, or entity subject to U.S. export restrictions, including those persons and entities that match the criteria set forth in (a), (b), or (c) above, and (3) that neither the United States Bureau of Industry and Security, nor any other U.S. federal agency, has suspended, revoked, or denied Your export privileges. United States Government export control rules prohibit the export of products (including software) to be used by military end-users in China, Russia, and Venezuela. The definition of a ‘military end-user’ is an army, navy, air force, marines, coast guard, national guard/civilian militia, police, government intelligence, or reconnaissance organization. Licensee certifies that they are not a military end-user in China, Russia or Venezuela and undertake not to provide OEM products or provide SaaS services using Tiny products to any military end-user in those countries.

12.5 Governing Law

This Self-Hosted Software License Agreement is governed by and construed and enforced in accordance with the substantive laws in force in the State of California, USA, and in no event shall the United Nations Convention on Contracts for the International Sale of Goods govern this Self-Hosted Software License Agreement.

12.6 Privacy Policy

Tiny’s Privacy Policy is detailed on the Tiny website at https://www.tiny.cloud/legal/privacy/

12.7 EU Data Protection Directives

Tiny must comply with the principles of the European Union Data Protection Directive 2016/679, the General Data Protection Regulations (GDPR) and the Telecoms Data Protection Directive as amended (“the Directives”) and any successor legislation, in relation to any “personal data” received by or originating from the Licensee. Licensee grants Tiny permission to place session cookies on their computer for the duration of any session. Tiny will not place residual cookies on a Licensee’s computer. Licensee 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 Tiny Software and Services. In particular, Licensee warrants that it will not use Tiny Software and Services in violation of any data privacy laws in the United States, Europe or elsewhere in the world. Licensee hereby represents that it will make this warranty as long as this Agreement is in force.

Tiny collects “personal data” only for the purpose of identifying users, Licensees and Customers of its websites, Software and Services. Persons with qualifying personal data may request the deletion of such data in accordance with the provisions of the GDPR and other relevant legislation. Such requests shall be directed to legal@tiny.cloud.

TINY SELF-HOSTED SOFTWARE LICENSE AGREEMENT

Schedule A

Tiny Software Technical Support Conditions

PROFESSIONAL SUPPORT

1. TINY TECHNICAL SUPPORT SERVICE LEVELS

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

Response times within the Service Hours: 2 business days. (Business days are based on Service Hours as defined in Section A.2. below).
You are entitled to two (2) Support tickets per calendar month.

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 PROBLEMS

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

4. APPLICATION TO TINY TECHNOLOGIES PRODUCTS

Tiny Technologies technical support for any release of the licensed Software 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 all issues will be delivered as a part of the normal release process (i.e. in the next release of the software).

ENTERPRISE SUPPORT

1. TINY TECHNOLOGIES TECHNICAL SUPPORT SERVICE LEVELS

Tiny undertakes to remedy problems in accordance with the following Service Levels.

Tiny Technical Support Service Level – Problem Category 1:
1. Response times within the Service Hours: 4 hours
2. Workaround times within the Service Hour: 24 hours
Tiny Technical Support Service Level – Problem Category 2:
1. Response times within the Service Hours: 8 hours
2. Workaround times within the Service Hour: 36 hours
Tiny Technical Support Service Level – Problem Category 3:
1. Response times within the Service Hours: 24 hours
2. Workaround times within the Service Hours: 48 hours

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.

Office contact information available at https://www.tiny.cloud/contact/.

3. PROBLEM CATEGORIES

Category 1:
1. Effective use (commercially tenable use) is not possible due to such malfunctions, or is unreasonably restricted or impaired.
Category 2:
1. Effective use of the software is not gravely impaired, so that working with the software according to the specifications stipulated (software documentation) is possible.
Category 3:
1. Effective use is not restricted due to this malfunction.

The categorization of these malfunctions into one of the malfunction classes is advised at the time that the malfunction is reported.

4. REPORTING OF PROBLEMS

5. APPLICATION TO TINY TECHNOLOGIES PRODUCTS

Tiny technical support for any Release of the Licensed Software will end 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. If a release is not superseded, then it will be supported until such time as Tiny declares end of support for the product. The announcement will be made via the Tiny website and will occur at a minimum of six (6) months before the last day of support.

TINY TECHNOLOGIES SELF-HOSTED SOFTWARE LICENSE AGREEMENT

Schedule B

Product Schedules

Conditions of Use as specified by Self-Hosted Software License Agreement Section 2.5:

A. TinyMCE Enterprise

License
1. You may install and Use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in an Authorized Method. You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.
2. Upon the termination of this Self-Hosted Software License Agreement or failure to pay Subscription Fees You will not be entitled to download and use new versions of the Sub-Licensed Software or download and use the open-source version of TinyMCE and claim a commercial license for TinyMCE open source software.
Upgrades & Support
1. Support. Licensee will be not be provided with Support unless Support Hours have been purchased in advance and are in credit. The provisions of Section 5.1 of the Self-Hosted Software License Agreement are omitted
2. Upgrades. The provisions of Section 5.2 of the Self-Hosted Software License Agreement only apply if Subscription Fees are paid.

B. TinyMCE License and Extended Support Offering

License
1. You may install and Use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in an Official Receipt. You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.
2. Upon the termination of this Self-Hosted Software License Agreement or failure to pay Subscription Fees You will not be entitled to download and use new versions of the Sub-Licensed Software or download and use the open-source version of TinyMCE and claim a commercial license for TinyMCE open source software.
Upgrades & Support
1. Support. Licensee will be provided with Support. The provisions of Section 5.1 of the Self-Hosted Software License Agreement are omitted
2. Upgrades. The provisions of Section 5.2 of the Self-Hosted Software License Agreement only apply if Subscription Fees are paid.
Special Conditions and Self-Hosted Software License Agreement Variations
1. Section 2.3(b) of the Self-Hosted Software License Agreement is omitted.
2. Licensee is entitled to apply Upgrades, Releases, new versions or bug fixes for the TinyMCE open source software provided by Tiny during the Subscription Period. In the event that the Subscription is not renewed the Licensee is not entitled under this Self-Hosted Software License Agreement to download, install or use Upgrades of the TinyMCE open source software.
3. Support will not be provided if the Licensed Software has been changed, modified or damaged. For Support to be provided you must be able to replicate the issue on a standard distributed build (i.e. one with no custom code modifications) provided from the TinyMCE.com website.

C. Tiny Enterprise TinyMCE Plug-Ins (including the Power Paste Plug-In and Moxiemanager)

License
1. Production use: You may install and Use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in an Authorized Method. You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.
Special Conditions and Self-Hosted Software License Agreement Variations
1. Licensee is entitled to apply Upgrades, Releases, new versions or bug fixes for the Tiny Technologies Enterprise TinyMCE Plug-Ins (including the Power Paste Plug-In) software provided by Tiny Technologies during the Subscription Period. In the event that the Subscription is not renewed the Licensee is not entitled under this Self-Hosted Software License Agreement to download, install or use Upgrades of the Tiny Enterprise TinyMCE Plug-Ins (including the Power Paste Plug-In).
2. Support will not be provided if the Licensed Software has been changed, modified or damaged. For Support to be provided you must be able to replicate the issue on a standard distributed build (i.e. one with no custom code modifications) provided by Tiny.

D. TinyMCE Pro Subscription

User License
1. Production License: You may install the TinyMCE Software on a Server or Servers and enable use of the Software by use by no more than the number of Users as specified in an Official Receipt.
2. Development License: You may install the TinyMCE Software on a Server or Servers and enable use of the Software by use by no more than the number of Users as specified in an Official Receipt.
Special Conditions and Self-Hosted Software License Agreement Variations
1. Section 2.3(b) of the Self-Hosted Software License Agreement is omitted.
2. Licensee is entitled to apply Upgrades, Releases, new versions or bug fixes for the TinyMCE open source software provided by Tiny Technologies during the Subscription Period. In the event that the Subscription is not renewed the Licensee is not entitled under this Self-Hosted Software License Agreement to download, install or use Upgrades of the TinyMCE open source software.
3. Support will not be provided if the Licensed Software has been changed, modified or damaged. For Support to be provided you must be able to replicate the issue on a standard distributed build (i.e. one with no custom code modifications) provided from the TinyMCE.com website.

Plupload

User License
1. Production License: You may install and use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in an Authorized Method.
2. Development License: You may install the Plupload Software on a specified domain and enable use of the Software by use by no more than the number of Users as specified in an Authorized Method.
Special Conditions and Self-Hosted Software License Agreement Variations
1. Licensee is not entitled to Support and Section 5 of the Self-Hosted Software License Agreement is omitted.
2. This license supersedes AGPLv3.

F. PowerPaste Plugin for WordPress

All code contained in the folder named “Plugins” is licensed under this Self-Hosted Software License Agreement. All other code is licensed under the General Public License (GPL).

License
1. Production use: You may install and Use the Software on Servers with no more than the Permitted Number of Processors or other method as specified in an Authorized Method. You may connect an unlimited number of client computers to the Server(s) used in your Production Environment.
Special Conditions and Self-Hosted Software License Agreement Variations
1. In relation to code licensed under GPL Section 2.3(b) of the Self-Hosted Software License Agreement is omitted.
2. Licensee is entitled to apply Upgrades, Releases, new versions or bug fixes for the PowerPaste Plugin for WordPress software provided by Tiny during the Subscription Period. In the event that the Subscription is not renewed the Licensee is not entitled under this Self-Hosted Software License Agreement to download, install or use Upgrades of the PowerPaste Plugin for WordPress
3. Support will not be provided if the code licensed under GPL has been changed, modified or damaged. For Support to be provided for the code licensed under GPL you must be able to replicate the issue on a standard distributed build (i.e. one with no custom code modifications) provided by Tiny.