Tiny Self-Hosted Software License Agreement

This Tiny Self-Hosted Software License 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 Licensee. For purposes of this Agreement, the “Agreement” includes the applicable Order.

Effective November, 24, 2024

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING TINY’S SOFTWARE.

THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF CERTAIN SOFTWARE OF TINY. THE PARTICULAR SOFTWARE WHICH TINY WILL LICENSE TO YOU HEREUNDER (I.E., THE LICENSED SOFTWARE) WILL BE THAT WHICH IS SPECIFIED IN AN ONLINE OR PHYSICAL QUOTE WHICH IS SUBMITTED BY US, SIGNED OR OTHERWISE ACCEPTED BY YOU AND WHICH REFERENCES THIS AGREEMENT (IN EACH CASE, AN “ORDER”). BY USING THE SOFTWARE, 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 “LICENSEE” REFERS TO THE COMPANY OR ENTITY IDENTIFIED IN THE ORDER. BY ACCEPTING THIS AGREEMENT, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE TO THIS AGREEMENT.

TINY MAY UPDATE OR MODIFY THIS AGREEMENT IN ACCORDANCE WITH SECTION 12.8 BELOW.

1. DEFINITIONS

The following definitions of terms apply to this Agreement:

“Customer” is any person or entity who receives a license from Licensee to use the Licensee Standalone Product or Licensee Subscription Service for its own use and not for resale or further sublicensing.
“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 Servers” means the internal servers on which You use the Licensed Software for testing and development purposes only.
“Developer” is a User who writes computer code that is incorporated in the 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.
“Documentation” means the applicable product documentation (which may include online user/help manuals) for the Licensed Software which is made generally available by Tiny as part of such Licensed Software, as updated by Tiny from time to time.
“Domain Names” means the Internet host name through which a Web site is accessible to Users.
“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 Fees” means the fees payable under Section 3 and as specified in an Order.
“License Key” means a sequence of numbers and characters used to unlock the Licensed Software.
“License Period” means the term for which Licensee is granted a license to use the Licensed Software as specified in an Order, including any and all renewal periods.
“Licensed Software” means executable code versions of Tiny’s software listed in an Order, and all Releases that Tiny provides to Licensee as part of such Licensed Software.
“Licensee Subscription Service” means a Licensee-provided software application delivered as a remote-hosted software-as-a-service offering that will be combined with the Licensed Software specifically identified in the Order.
“Licensee Standalone Product” means a Standalone Product of Licensee that will be combined with the Licensed Software specifically identified in the Order.
“Order” has the meaning described in the capitalized paragraph on the first page of this Agreement.
“Order Effective Date” means the start or commencement data specified in the Order.
“Permitted Number” means the authorized number of Processors, Development Servers, Servers, PVUs, Domain Names, software applications, Users and/or Customers as indicated in the Order.
“Processor” means a single central processing unit of a machine with up to 2 cores. For multi-core Processors each 2 cores will count as a single Processor.
“Production Environment” means the technical environment in which You use the Software for Your business purposes.
“Release” means a version of the Licensed Software that is designated by the first two (2) digits in the numbering nomenclature used by the Licensed Software (for example, version 2.1). Any digits that follow the first two (2) digits will designate the maintenance level of the particular Release.
“Server” means a network server that contains one or more Processors.
“Standalone Product” means a Licensee-provided software application which Licensee distributes to its Customers as a standalone software application. A Standalone Product is distributed and licensed to Licensee’s Customers as an “on-premise” license which is operated by the Customers in their internal computing environment. Accordingly, “Standalone Product” does not include a Licensee-provided software application provided in a Licensee Subscription Service.
“Support” shall have the meaning set forth in Section 4.
“Use” means to access, install, download, copy and/or otherwise utilize (as applicable) the functionality of the Licensed Software in accordance with the Documentation and the terms and conditions of this Agreement.
“User” means any and all individuals who are authorized by Licensee to access and use the Licensed Software for the benefit of Licensee for the purposes authorized under, and on the terms set forth in, this Agreement.
“VPN” means a private communications network generally used within enterprises to communicate over a public network using secure protocols.

GRANT OF LICENSE AND RESTRICTIONS

2.1 General

Tiny grants You a limited, non-perpetual and non-transferable license to use the Licensed Software identified in your Order subject to the terms and conditions of this Agreement and the Order. An Order may refer to or incorporate an online pricing page or other section of Tiny’s website (http://www.tiny.cloud) and, if so, those other pages and/or sections, as updated from time to time, shall be deemed a part of the Order.

2.2 Use of Licensed Software in a Licensee Subscription Service, a Licensee Standalone Product or in an Internal Licensee Application

2.2.1 Licensee Subscription Service License

If You have been authorized in Your Order to Use the Licensed Software in a Licensee Subscription Service, then this section 2.2.1 applies to You.

Subject to the terms and conditions set forth in this Agreement and only during the License Period, Tiny grants to Licensee a non-exclusive, non-transferable, world-wide license, to integrate the Licensed Software with a Licensee Subscription Service and make available the Licensed Software and associated Documentation to Customers solely when so included as part of the Licensee Subscription Service; provided that such Licensee Subscription Service must contain significant additional functionality which is not included in the Licensed Software. Licensee’s right to Use and make available the Licensed Software in accordance with the above, and its Customers right to use the Licensed Software as part of the Licensee Subscription Service, shall cease upon the earlier of the expiration of the License Period or the termination of this Agreement.

2.2.2 Licensee Standalone Product License

If You have been authorized in your Order to Use the Licensed Software in a Licensee Standalone Product, then this section 2.2.2 applies to You.

Subject to the terms and conditions set forth in this Agreement, and only during the License Period, Tiny grants to Licensee a non-exclusive, non-transferable, world-wide license, to integrate the Licensed Software with a Licensee Standalone Product, and distribute the Licensed Software and associated Documentation to Customers solely when so included as part of the Licensee Standalone Product; provided that such Licensee Standalone Product must contain significant additional functionality which is not included in the Licensed Software. Licensee’s right to Use and distribute the Licensed Software in accordance with the above, and its Customers right to Use the Licensed Software as part of a Licensee Standalone Product, shall cease upon the earlier of the expiration of the License Period or the termination of this Agreement. Notwithstanding the above, Licensee’s Customers may continue to use the Licensed Software as part of the Licensee Standalone Product, and Licensee may continue to provide support for such Customers pursuant to Section 4.6, for a transition period after termination or expiration of this Agreement, provided that: (a) the transition period shall not exceed twelve (12) months; (b) Licensee and the applicable Customers are at all times in compliance with the license restrictions, as well as the conditions and limitations, specified in this Agreement, including those set forth in Section 2.6 below; and (c) the parties mutually agree in writing to the fees to be paid by Licensee for the transition period, which fees shall be due and payable in advance thereof.

2.2.3 Internal Licensee Application License

If You have been authorized in your Order to Use the Licensed Software in an Internal Licensee Application, then this section 2.2.3 applies to You.

For clarity, Licensee’s rights under a license granted pursuant to Section 2.2.1 or Section 2.2.2 do not permit Licensee to Use the Licensed Software, whether integrated or not, in support of its own internal business operations, as such Use requires the purchase of an Internal Use License as described in this Section 2.2.3. However, Licensee shall provide First Level Technical Support (described in Section 4.5.1 below) to Customers with respect to the licenses granted under Sections 2.2.1 or 2.2.2.

2.2.4 Users

Licensee may exercise its rights by and through its Users, including Developers and other contractors who Use the Licensed Software solely in support of Licensee’s internal business operations and who are bound in writing to comply with the confidentiality, limited use and other applicable provisions of this Agreement. Licensee shall ensure that its Users make use of the Licensed Software solely as Licensee is authorized to Use the Licensed Software hereunder and shall be responsible and liable to ensure that all such Users comply with this Agreement.

2.2.5 Licensing Limitations

Each of the licenses described in this Section 2.2 may be subject to a limitation on Editor Loads, as well as limitations on access to packages/bundles of features and/or Permitted Numbers of other specified licensing metrics, as specified in the Order. Use of the Licensed Software beyond any such limitation will be addressed upon renewal and may require payment of additional usage fees.

2.3 Backup and Disaster Recovery

You may make and install a reasonable number of copies of the Licensed 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 and archival copy. You may only use such archival and backup 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 Licensed Software is capable of replacing the primary usage of the Licensed Software in case of a disaster.

2.4 Restrictions

You shall not, and shall ensure that Your Users, Customers and other third parties do not:

sell, lease, license, sublicense, encumber or otherwise transfer any right in any portion of the Licensed Software or Documentation;
decompile, disassemble, or reverse engineer any portion of the Licensed Software or attempt to discover any source code or underlying ideas or algorithms of the Licensed Software;
modify the Licensed Software or create any derivative work based on the Software;
without the express written permission of Tiny or as provided for in Section 2.2: (i) use the Licensed Software to provide direct processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a “service bureau” basis; or (ii) otherwise use or allow others to use the Licensed Software for the benefit of any third party;
Use the Licensed Software in a manner which violates applicable laws or regulations or poses a liability risk to Tiny; and
prevent the Licensed Software licensing information from being displayed to any user of the Software.

2.5 No Other Rights Granted:

Any rights or licenses not expressly granted to You in this Agreement are expressly reserved by Tiny.

2.6 Customer Agreements

If you have been granted a license under Section 2.2.1 or 2.2.2, then this Section applies to You.

Licensee shall have the right to sub-license the Licensed Software to a Customer as part of a Licensee Subscription Service or a Licensee Standalone Product (as used below, the term “Applicable Licensee Offering” shall mean either a Licensee Subscription Service or a Licensee Standalone Product, as applicable to, and dependent upon, the license granted to Licensee hereunder), provided that it does so in each instance under a Customer Agreement having terms substantially similar or at least as protective of Tiny’s rights as the provisions of this Agreement and the following provisions as to the Licensed Software:

The Customer is granted a nonexclusive, nontransferable license to use the Licensed Software solely in connection with the internal business operations of the Customer and not for resale, further licensing or transfer or use for the benefit of any third party.
The Customer may use the Licensed Software only as part of an Applicable Licensee Offering provided by the Licensee.
The Customer shall not be provided any warranty with respect to the Licensed Software, and the Customer Agreement shall incorporate the disclaimer set forth in Section 7.2 but with no reference to any warranty being provided to the Customer for the Licensed Software.
Tiny owns all right, title and interest to the Licensed Software, the Documentation, and all modifications and derivatives thereof.
The Customer shall not decompile, disassemble, reverse engineer, modify, or create derivative works of the Licensed Software nor shall the Customer take any action to circumvent or defeat the security or content usage rules or features associated with the Licensed Software.
The Customer Agreement, along with Customer’s right to use Licensed Software, will terminate if the Customer breaches any of the terms set out in the Customer Agreement and is unable to cure such breach within the cure period specified therein.
Licensee’s licensors and vendors shall not have any liability or responsibility to Customer.
The Customer will not remove, obscure, or alter copyright notices, trademarks, or other proprietary rights notices affixed to, contained in, or accessed in conjunction with or through the Licensed Software.
In order to protect their interests in the Licensed Software, Licensee’s licensors and vendors shall have the right to enforce the Customer Agreement as it affects the Licensed Software.
Customer may exercise its rights by and through its employees and contractors who use the Applicable Licensee Offering solely in support of the exercise of the rights granted to Customer hereunder; Customer shall ensure that such employees and contractors are bound to, and comply with, the terms and conditions in the Customer Agreement.

Without limiting Tiny’s rights to enforce the Customer Agreement with respect to the Licensed Software, Licensee shall be primarily responsible for enforcing all Customer Agreements.

3. PAYMENT TERMS

3.1 Fees, Invoicing and Payment Terms

Licensee agrees to pay Tiny the fees specified in the Order (Licensee Fees”) for use of the Licensed Software during the License Period. The License Fees are payable in United States dollars. The License Fees are invoiced in advance for the License Period (including each renewal period) and shall be due and payable within thirty (30) days from issuance by Tiny.

3.2 Payment Conditions

License Fees are non-refundable and non-cancellable. 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 License Fees by their due date shall constitute a material breach of this Agreement.

3.3 Renewal Fees and Associated Reporting Obligations

Between sixty (60) and seventy-five (75) days prior to each renewal period, Licensee shall deliver to Tiny a report (a “Usage Report”) containing information as reasonably requested by Tiny to determine and identify Licensee’s Use of the Licensed Software in relation to the usage and licensing metrics/limitations for the applicable license granted to Licensee hereunder (for example, the information would include the number or Editor Loads and/or other applicable Permitted Numbers). Such Usage Reports shall be certified by an officer of Licensee if so requested by Licensee.

Approximately fourteen (14) days after Tiny’s receipt of the Usage Report, Tiny will notify Licensee of Tiny’s determination of the licensing metrics/limitations and associated fees (including fee increases) for the upcoming renewal period. Unless Licensee elects to not renew this Agreement in accordance with Section 5.1, Licensee will be deemed to have agreed to such metrics and fees and Tiny will invoice Licensee accordingly.

If Licensee does not provide Tiny with a Usage Report in a timely manner, then, unless Licensee or Tiny elect to not renew this Agreement in accordance with Section 5.1, the licensing metrics/limitations in effect for the then-current License Period will be deemed to apply to the upcoming renewal period and Licensee agrees that Tiny will invoice Licensee for fees based on then-current pricing, including any fee increases pursuant to Tiny’s then-current pricing policies.

Alternatively, if the Usage Report is not timely provided to Tiny, Tiny may, in its sole discretion, suspend and/or terminate the Order and/or this Agreement at the end of the then-current License Period.

3.4 Taxes

The License Fees do not include taxes and 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. SUPPORT TERMS AND CONDITIONS

4.1 Support

4.1.1 Nature of Support

Tiny offers two levels of technical support services (“Support”) to you under this Agreement: Professional Support and Enterprise Support. The level of Support you are entitled to is shown in the Order.

During the License Period, Tiny will provide Support for defects in the operation of the Licensed Software (a “defect” occurs when the Licensed Software does not operate in material conformity with the Documentation) in accordance with this Section 4 and Schedule A.

4.1.2 Provision of Support for Releases

During the License Period, Tiny shall provide to Licensee any and all Releases of the Licensed Software and the Support described in this Section 4 so long as Licensee has paid all License Fees specified in an Order. All Releases shall be deemed to constitute Licensed Software for the purposes of this Agreement. Releases will be made available through https://www.tiny.cloud. Tiny solely determines the features and schedule of any and all Releases.

For clarity, Releases do not include packages, modules or bundles of features which are separately priced and marketed by Tiny.

4.1.3 Access to Online Support Center

Tiny will provide You with access to the Tiny Online Support Center located at https://support.tiny.cloud. You will be provided access to Documentation, community forums and a Web-based support form to submit a support case. Access to your product entitlements is handled at https://www.tiny.cloud/my-account/.

4.1.4 Support Conditions

Tiny’s obligation to provide 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, as well as access to the personnel, hardware, and any additional software involved in discovering the problem;
You promptly install all Releases; and
You procure, install and maintain all equipment necessary to operate the Licensed Software.

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

4.2 Defects

During the License Period You may report any defects in the Licensed Software to Tiny. If Tiny, in its reasonable discretion, determines that a reported, reproducible, material defect in the Licensed Software exists that significantly impairs the usability and utility of the Licensed Software, Tiny agrees to use reasonable commercial efforts to correct the defect.

4.3 Service Exclusions

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

the Licensed 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 third party software not licensed through Tiny; or
You have not paid License Fees when due.

4.4 Support for Previous Releases

Tiny has no obligation to provide Support for any Release of the Licensed Software outside of the terms stated in Schedule A.

4.5 Support for Licensee Subscription Service & Licensee Standalone Product Customers

4.5.1 Licensee’s Support Commitments

Licensee shall provide First Level Technical Support to Customers. “First Level Technical Support” means that Licensee will provide technical support during Licensee’s normal business hours, directly to the Customer concerning general product information, use of the Licensee’s Subscription Service or Licensee Standalone Product in accordance with the Documentation, configuration support and collection of relevant technical problem identification information, and will differentiate non-technical problems from technical problems. Licensee will defend, indemnify and hold harmless Tiny, and its directors, managers, shareholders, employees and agents, from and against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities, arising out of or relating to any breach by Licensee of the terms of any support obligations arising from an agreement between Licensee and any Customer.

4.5.2 Tiny’s Support Service

Without limiting Licensee’s obligation to provide First Level Technical Support to Customers, Tiny shall exercise commercially reasonable efforts to provide Second Level Technical Support to the Licensee, by a medium (e.g. by telephone or email) of Tiny’s choice provided that Licensee is then current on all of its payments to Tiny. “Second Level Technical Support” means the Support made available to Licensee pursuant to this Section 4; provided that, for clarity, such Support is provided only to Licensee and not to Licensee’s Customers (Licensee may, in turn, during the term of this Agreement, then make corresponding technical support available to its Customers). Licensee may designate in writing up to three (3) Support contacts and Tiny shall have no obligation to provide Support to any individual or entity except for such designated contacts. Tiny will also provide a reasonable level of Support, delivered by a medium (e.g. by telephone or email) of Tiny’s choice, to Licensee’s Developers to support their initial integration with the Licensed Software and the integration of Releases.

Tiny’s obligation to provide Second Level Technical Support is conditioned upon the items described in Section 4.1.4 above.

Licensee makes reasonable efforts to solve the problem after consulting with Tiny;
Licensee provides Tiny with sufficient information and resources to correct the problem either at Tiny’s offices or via remote access to Licensee’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the problem;
Licensee promptly installs all new Releases; and
Licensee procures, installs and maintains all equipment necessary to operate the Software.

5. TERM AND TERMINATION

5.1 Term

The term of this Agreement will begin on the Order Effective Date and will expire at the end of the applicable License Period unless earlier terminated in accordance with this Section 5. For clarity, the initial License Period shall be as set forth in the Order. The License Period will auto-renew and License Fees will be due and payable for the applicable renewal period unless either party provides written notice of its intention not to renew this Agreement at least 30 days before the end of the then-current License Period. Unless otherwise agreed by the parties in writing, each renewal period shall be for a period of one (1) year. Fees will be invoiced in advance for the License Period and each renewal period.

5.2 Termination on Material Breach

This Agreement may be terminated by either party at any time in the event that (a) the other party is notified in writing by the non-breaching party that it is in material breach of the terms or conditions of this Agreement; and (b) such other party fails to remedy such breach within thirty (30) days following such notice or five (5) business days following such notice if the breach is a failure by Licensee to pay any fee required under Section 3 of this Agreement.

5.3 Termination on Financial Difficulty

To the extent allowed by law, Tiny may terminate this Agreement effective immediately upon written notice to Licensee if Licensee becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or otherwise experiences similar material financial distress.

5.4 Survival

The terms of this Agreement which relate to confidentiality, intellectual property ownership, indemnity, 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 in accordance with their terms.

5.5 Effect of Termination

Licensee and all Customers must cease all use of the Licensed Software immediately upon expiration or termination of this Agreement for any reason; provided, however, that if Licensee is licensed under the provisions of Section 2.2.2 of this Agreement, then Licensee may be entitled to a transition period in accordance with such Section 2.2.2. For clarity, termination of this Agreement shall also terminate the applicable Order.

6. REPORTING OBLIGATIONS AND AUDIT RIGHTS

Upon reasonable notice, Licensee agrees to allow Tiny or a designated third party to audit and inspect Licensee’s site, books and records (other than the reports described above) to confirm Licensee’s compliance with this Agreement. Licensee shall cooperate with such requests by providing requested information and otherwise facilitating the audit. If such an audit discloses a violation of this Agreement (including the failure to pay, or underpayment of, fees due hereunder (collectively, “Underpayment”)), Licensee agrees to pay: (i) the cost of the audit; (ii) the full amount of any Underpayment; and (iii) interest on any Underpayment (from the time due until paid) in accordance with Section 3.2.

7. WARRANTIES AND LIMITATIONS; INDEMNITY

7.1 Performance Warranty

Tiny warrants to Licensee, conditioned on Licensee’s use of the Licensed Software in compliance herewith, that the Licensed Software will perform in all material respects in accordance with its Documentation for a period of ninety (90) days following the Order 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 7; (b) replace the Licensed Software with software that operates in accordance with the warranty provided in this Section 7; or (c) refund all unused amounts paid to Tiny by Licensee as depreciated on a straight-line sixty (60) month basis and terminate this Agreement without further liability.

7.2 Warranty Disclaimer

EXCEPT FOR THE WARRANTIES IN SECTION 7.1 ABOVE, TINY MAKES NO WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, AND EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, TINY DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET YOUR REQUIREMENTS.

7.3 Indemnification

7.3.1

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 the license granted under this Agreement infringes or violates any United States patent, copyright, trademark, trade secret or other intellectual property right of a third party, and Tiny will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred 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 practical, 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 7.3 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 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.

7.3.2

Licensee shall defend, indemnify, and hold Tiny, its affiliates and their employees, officers, directors and agents harmless from and against any damages, losses, costs, and liabilities arising from or in connection with: (i) any claim that Licensee Data (as defined in Section 9.1) infringes any rights of any third party or gives rise to defamation, invasion of privacy or other claim based on the nature or substance thereof; or (ii) any use of the Licensed Software in a manner contrary to or in violation of the terms and conditions (including usage restrictions) of this Agreement or an Order, or contrary to applicable law.

8. LIMITATION OF LIABILITY

IN NO EVENT SHALL TINY OR ITS AFFILIATES, CONTRACTORS OR 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, ITS AFFILIATES, CONTRACTORS AND ITS SUPPLIERS UNDER THIS AGREEMENT SHALL APPLY SEPARATELY TO EACH ORDER AND SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY LICENSEE UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL CLAIM ASSERTED BY LICENSEE 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.

9. INTELLECTUAL PROPERTY; CONFIDENTIALITY

9.1 Intellectual Property.

The Licensed Software is licensed, not sold. Tiny and its licensors hold all right, title, and interest, including all copyright, trade secrets, patents, trademarks and other intellectual property rights, in and to the Licensed Software and all Documentation, modifications, Releases, Analytic Data (defined below) and derivatives thereof (collectively, “Tiny IP”), subject only to any rights held by Tiny’s licensors. No right, title, or interest in the Tiny IP shall pass to Licensee except for the licenses specifically granted in this Agreement.

Licensee grants Tiny, its employees, affiliates and contractors the right to so process, store and otherwise use all data, materials and other content provided or made available to Tiny in connection with this Agreement (“Licensee Data”) for the purposes of providing the Licensed Software and otherwise meeting its obligations hereunder. Licensee is responsible for obtaining and maintaining all necessary rights and consents for Tiny to process, store and otherwise use Licensee Data for the above-described purposes.

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

9.2 Confidential Information

“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 Licensed 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 or licenses granted under this Agreement may be assigned or otherwise transferred by Licensee, 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 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 assignees.

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 applicable 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 Licensee’s Customers and internal users.

10.3 U.S. Government End Users

If Licensee is a government body, the following shall apply: 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, and subject to the restrictions and limitations imposed upon, all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

10.4 U.S. Export Restrictions

The Licensed Software may be subject to laws and regulations of the United States and other jurisdictions (“Export Laws”). Licensee 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. Licensee shall not, and shall ensure that its Customers and internal users do not, export, transfer, or otherwise access or use the Licensed Software in any country subject to an embargo or other sanction by the United States or otherwise in violation of the Export Laws.

10.5 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.

10.6 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. Licensee 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 Licensed Software. 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.

10.7 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.

10.8 Changes to this Agreement

Tiny may revise this Agreement from time to time. In each instance, Tiny will give Subscriber at least sixty (60) 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 Licensee, such changes will take effect at the end of the 60-day notice period except as provided below. If Licensee does not wish to accept such changes, then Licensee 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.

10.9 Privacy Policy

Tiny’s Privacy Policy is detailed on the Tiny website at https://www.tiny.cloud/legal/privacy/. Licensee has read the Privacy Policy and associated Cookies Policy and accepts their terms.

10.10 Entire Agreement

This Agreement, together with the Orders, will constitute the entire agreement between the parties concerning the Licensed Software and supersedes and replaces any prior or contemporaneous understandings and agreements regarding the subject matter hereof.

TINY SELF-HOSTED SOFTWARE LICENSE AGREEMENT

Schedule A

Tiny Licensed Software Support

A. PROFESSIONAL SUPPORT

1. TINY SUPPORT SERVICE LEVELS

Tiny undertakes to remedy defects in the Licensed Software 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 DEFECTS

All defects in the Licensed Software 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, Licensee shall include the Tiny Technical Support case number that was advised by email in response to the initial reporting.

4. APPLICATION TO RELEASES

Tiny’s Support for any Release of the Licensed Software will end (with Tiny having no further obligation to provide Support for the Release) as specified below:

The later of either: (a) six (6) months after the Release has been superseded by a new Release; or (b) eighteen (18) months after the Release was first made available. If a Release is not superseded by a new Release, then it will be supported until such time as Tiny declares end of Support for the Licensed Software. 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.

Fixes for defects will be delivered as a part of the normal release process (i.e. in the next Release of the Licensed Software).

B. ENTERPRISE SUPPORT

1. TINY SUPPORT SERVICE LEVELS

Tiny undertakes to remedy defects in the Licensed Software in accordance with the following service levels:

Tiny Support Service Level – Defect Category 1:
1. Response times within the Service Hours: 4 hours
2. Workaround times within the Service Hours: 24 hours
Tiny Support Service Level – Defect Category 2:
1. Response times within the Service Hours: 8 hours
2. Workaround times within the Service Hours: 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

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. Tiny shall determine the Problem Category to be assigned.

5. APPLICATION TO RELEASES

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 by a new Release; or (b) eighteen (18) months after the Release was first 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.

B. ENTERPRISE SUPPORT

1. TINY SUPPORT SERVICE LEVELS

Tiny undertakes to remedy defects in the Licensed Software in accordance with the following service levels:

Tiny Support Service Level – Defect Category 1:
1. Response times within the Service Hours: 4 hours
2. Workaround times within the Service Hours: 24 hours
Tiny Support Service Level – Defect Category 2:
1. Response times within the Service Hours: 8 hours
2. Workaround times within the Service Hours: 36 hours
Tiny Support Service Level – Defect 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. DEFECT CATEGORIES

Category 1:
1. Effective use (commercially tenable use) of the Licensed Software is not possible due to such defects, or is unreasonably restricted or impaired.
Category 2:
1. Effective use of the Licensed Software is not gravely impaired, so that working with the Licensed Software according to the Documentation is possible.
Category 3:
1. Effective use is not restricted due to this Defect.

The categorization of defects into one of the Defect Categories is determined by Tiny at the time that the defect is reported.

4. REPORTING OF DEFECTS

All defects in the Licensed Software 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. Tiny shall determine the Defect Category to be assigned.

5. APPLICATION TO RELEASES

Tiny Support for any Release of the Licensed Software will end (with Tiny having no further obligation to provide Support for the Release) on the later of either: (a) six (6) months after the Release has been superseded by a new Release; or (b) eighteen (18) months after the Release was first made available. If a Release is not superseded by a new Release, then it will be supported until such time as Tiny declares end of Support for the Licensed Software. 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.