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Tiny Cloud Services Subscription Agreement

TINY CLOUD SERVICES SUBSCRIPTION AGREEMENT

Ephox Corporation DBA Tiny Technologies Inc. (“Tiny”) having offices at 2100 Geng Road, Suite 220, Palo Alto, CA 94303, United States of America

Effective November 28, 2018.

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

PLEASE READ THIS TINY SUBSCRIPTION SERVICES AGREEMENT (“CLOUD SERVICES SUBSCRIPTION AGREEMENT”) CAREFULLY BEFORE USING THE CLOUD SERVICES SUBSCRIPTION (“CLOUD SERVICES SUBSCRIPTION”), YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS CLOUD SERVICES SUBSCRIPTION AGREEMENT, PLEASE DO NOT CLICK ‘ACCEPT.’ BY CLICKING ON ‘ACCEPT’ YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS CLOUD SERVICES SUBSCRIPTION AGREEMENT AND YOU WILL BE ACQUIRING A LICENSE TO USE THE SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS CLOUD SERVICES SUBSCRIPTION AGREEMENT. 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 CLOUD SERVICES SUBSCRIPTION AGREEMENT AS IF YOU HAD USED OR INSTALLED THE SOFTWARE.

1. DEFINITIONS

The following definitions apply in this Cloud Services Subscription Agreement:

  1. “API Key” shall have the meaning set forth in Section 6.4.
  2. “Authorized” means a Subscriber is entitled to use the Software for a specific purpose or purposes or to access certain services provided by Tiny. Subscriber is specifically Authorized by one of the following methods (“Authorized Method”):
    1. in a Licensee-Signed Quote;
    2. in a receipt issued by Tiny;
    3. in a Confirmation Email; or
    4. in an agreement signed with Tiny.
  3. “Cloud Services Subscription Agreement” shall have the meaning set forth in the Preamble provided herein and include any sales forms.
  4. “Confirmation Email” means an email sent by Tiny that details the subscription start date, subscription length and the subscription end date.
  5. “Directives” shall have the meaning set forth in Section 6.2.
  6. “Effective Date” means the date on which Subscriber clicked the “I agree” button on the website or was issued with a document provided by the Authorized method.
  7. “Monthly Active User” or “MAU” means the total number of users that load the Subscription Services at least once in a month as set forth in Section 3.3.
  8. “Purchase Confirmation Email” means an email sent by Tiny that details the subscription start date, subscription length and the subscription end date.
  9. “Software” means the software used by Tiny to provide the Cloud Subscription Services including the TinyMCE Core Editor and Tiny Premium Plugins.
  10. “Software-as-a-Service” (‘SaaS’) shall have the meaning of an application that is provided by the Subscriber in a hosted environment that is provided to the end-users of the Subscriber’s application via the Internet or a private network.
  11. “Subscriber” means You.
  12. “Subscription Fees” shall have the meaning set forth in Section 5.
  13. “Subscription Period” means the term for which Subscription Fees have been paid as set forth in Section 2.2 herein.
  14. “Subscription Services” shall mean the Cloud hosted software-as-a-service provided by Tiny as set forth in the Preamble of this Cloud Services Subscription Agreement.
  15. “Support” shall have the meaning set forth in Section 7.3.
  16. “TinyMCE Core Editor” shall mean the software for the TinyMCE editor and does not include Tiny Premium Plugins.
  17. “Tiny Premium Plugins” shall mean the Software listed on the Tiny website at https://apps.tiny.cloud/.
  18. “You“ or “Your” shall mean the Subscriber.

2. GRANT OF LICENSE

In partial consideration for the Subscription Fees set forth in Section 5 and subject to the terms and conditions of this Cloud Services Subscription Agreement, Tiny hereby grants to Subscriber a non-exclusive, limited right to use the Cloud Services Subscription under the terms and conditions of this Cloud Services Subscription Agreement for the scope and products provided by the Authorized method. The grant of this license shall terminate with the termination of this Cloud Services Subscription Agreement.

Licenses granted are of the following types:

  1. Trial Subscription License – see Section 2.1
  2. Paid Subscription License – see Section 2.2
  3. No Charge Subscription License – see Section 2.3

2.1 Trial Subscription License

Tiny and Subscriber may agree in advance that Subscriber will be allowed to use Cloud Subscription Services for evaluation purposes. If Tiny agrees to allow Subscriber to use the Cloud Subscription Services for evaluation purposes, then all the prohibitions of this Cloud Services Subscription Agreement shall be used for Cloud Subscription Services but only for an evaluation term of thirty (30) days or as agreed to in advance by Tiny and Subscriber. At the end of the evaluation period, Subscriber shall have the option of obtaining a Paid Subscription License or a No Charge Subscription License. A Trial Subscription License entitles the Subscriber to use Tiny Drive in accordance with the terms specified in Section 3.5 of this Agreement.

2.2 Paid Subscription License

The Subscription Period (“Subscription Period”) commences on the date Subscriber is Authorized to use the Cloud Subscription Services and continues until the end of the last renewal. The Authorized Method states the Software that may be used during the Subscription Period. In the event that a Subscriber with a Paid Subscription License fails to renew the Paid Subscription the Subscriber may continue to use the Software under a No Charge Subscription License. Subscription Fees will renew in accordance with Section 5.1 or 5.2. A Paid Subscription License entitles the Subscriber to use Tiny Drive in accordance with the terms specified in Section 3.5 of this Agreement.

2.3 No Charge Subscription License

The Subscription Period (“Subscription Period”) commences on the date Subscriber is Authorized to use the Cloud Subscription Services and continues indefinitely until the Cloud Services Subscription Agreement is terminated. A No Charge Subscription License allows Subscriber to use the TinyMCE Core Editor only and does not include authorization to use Tiny Premium Plugins. Use of the TinyMCE Core Editor through the Cloud Subscription Service does not constitute use under an opensource license. A No Charge Subscription License entitles the Subscriber to use Tiny Drive in accordance with the terms specified in Section 3.5 of this Agreement.

3. PERMITTED LICENSE USES AND RESTRICTIONS

3.1 Cloud Subscription Services Usages and Restrictions

  1. The Subscriber may use the Cloud Subscription Services to:
    1. develop software applications that interface with the Cloud Subscription Services to provide services embedded within their applications;
    2. make the Cloud Subscription Services available to end users of their application in compliance with the terms of this Cloud Subscription Services Agreement.
  2. The Cloud Subscription Services provided to the Subscriber are non-exclusive and limited. Subscriber may not:
    1. reverse engineer the Cloud Subscription Services or its APIs;
    2. access the Cloud Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Subscriber is an employee of a Tiny competitor or a Tiny competitor;
    3. use the Cloud Subscription Services in a way that violates any criminal or civil law; or
    4. exceed usage limits specified in the Authorized Method.

3.2 Access to Cloud Subscription Services

The Software is located on servers that are controlled by Tiny. Subscribers may access the Software but Subscriber has no rights to receive a copy of the object code or source code of the Software.

3.3 Subscription Services Usage Calculation

Use of the Subscription Services is subject to the number of Monthly Active Users (“MAU”) calculated as follows:

  1. A count of the number of MAU as at the end of the month;
  2. Tiny will compare the actual number of MAU against the number of Authorized MAU;
  3. Tiny will notify the Subscriber if the actual number of MAU exceeds the Authorized MAU;
  4. Subscriber will have ten (10) days to contact Tiny to increase the Authorized MAU;
  5. In the event that the Subscriber does not increase the Authorized MAU by the end of the ten (10) day period, the Subscription Services will be suspended; and
  6. The Subscription Services will be restored upon increase of the Authorized MAU.

3.4 Use of Tiny Cloud Subscription Services in a Software-as-a-Service Application

In applications where the Tiny Cloud Subscription Services are used by the Subscriber in a SaaS application You are required to advise Your end-user subscribers of the following terms of this Agreement:

  1. Section 3.1 B. Prohibited Uses
  2. Section 6.1: Tiny Privacy Policy
  3. Section 6.2: EU Data Protection Directives
  4. Section 8: Warranty and Liability
  5. Section 10.1: US Export Restrictions

This may be achieved by having terms of use for Your end-users that are substantially in accordance with the above mentioned sections.

3.5 Use of Tiny Drive

The following Terms apply if You use the Tiny Cloud-base content hosting service (‘Tiny Drive’) for textural and graphic content storage and management:

3.5.1 Your Content

Our Tiny Drive Service allows You to store and share Your Content. We don’t claim ownership of Your Content. Your Content remains Your Content and You are responsible for it. Specifically:

  1. When You share Your Content with other people, You understand that they may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display Your Content without compensating You. If You do not want others to have that ability, do not use the Tiny Drive.
  2. You represent and warrant that for the duration of these Terms, You have (and will have) all the intellectual property rights necessary for Your Content that is uploaded, stored and shared on Tiny Drive and that the collection, use and retention of Your Content will not violate any law or rights of others. Tiny does not own, control, verify, pay for, endorse or otherwise assume any liability for Your Content and cannot be held responsible for Your Content or the material others upload, store or share using the Tiny Drive Service.

3.5.2 Code of Conduct

By agreeing to these Terms, you’re agreeing that, when using the Tiny Drive Service, You will follow these rules:

  1. Don’t do anything illegal.
  2. Don’t engage in any activity that exploits, harms or threatens to harm children.
  3. Don’t use the Tiny Drive Service to share inappropriate content or material (involving, for example, nudity, bestiality, pornography, offensive language, graphic violence or criminal activity).
  4. Don’t engage in activity that is fraudulent, false or misleading (e.g. post material that is libellous or defamatory).
  5. Don’t engage in activity that is harmful to You, the Tiny Drive Service or others (e.g. transmitting viruses, stalking, posting terrorist content, communicating hate speech or advocating violence against others).
  6. Don’t infringe upon the rights of others (e.g. unauthorised sharing of copyrighted images or other copyrighted material).
  7. Don’t engage in activity that violates the privacy or data protection rights of others.

3.5.3 Enforcement

If You violate these Terms, we may, in our sole discretion, stop providing the Tiny Drive Service to You and/or we may close Your Tiny account. We may remove or refuse to publish Your Content for any reason. When investigating alleged violations of these Terms, Tiny reserves the right to review Your Content in order to resolve the issue, and You hereby authorise such review.

3.5.4 Reporting Objectionable Content

You or other parties may report breaches of these Terms to Tiny. Tiny takes any breach of the Code of Conduct seriously and will remove any of Your Content that contravenes the Code of Conduct. Objectionable content and other breaches of the Code of Conduct may be reported to legal@tiny.cloud.

3.5.5 Privacy

The privacy of Your Content is your responsibility. If the EU’s GDPR or other national data privacy laws apply to You then You are the ‘controller’ of Your Content and are responsible for its removal should You be requested to do so. Tiny will refer any requests for personal data erasure to You.

3.5.6 Storage Volume Limits

The Storage Volume Limits for the License granted to You in Section 2 (Grant of License) are stated on the Tiny website at https://www.tiny.cloud/pricing/. Tiny may restrict your usage or delete Your Content where Your Storage Volume Limits have been exceeded.

3.5.7 Inactive Accounts

Tiny may delete Your Content when Your Content has not been accessed or uploaded within a 12-month period. Storage time limits are stated on the Tiny website at https://www.tiny.cloud/pricing/.

3.6 Product Attribution

No Charge and Trial Licensees must include product attribution of the TinyMCE software on every user view of the TinyMCE editor. Detailed presentation requirements are presented at https://www.tiny.cloud/docs/general-configuration-guide/attribution-requirements/.

4. TERM & TERMINATION

4.1 Termination

This Cloud Services Subscription Agreement commences on the Effective Date and will remain in force until terminated. This Cloud Services Subscription Agreement shall immediately terminate if Paid Subscription License Subscriber does not pay the Subscription Fees as provided herein or fails to meet other Agreement terms. This Cloud Services Subscription Agreement for a No Charge Subscription License Subscriber shall terminate at Tiny’s discretion. Subscriber’s rights shall also immediately terminate under this Cloud Subscription Services Agreement without notice from Tiny if: (a) Subscriber fails to comply with any term(s) of this Cloud Subscription Services Agreement or (b) in the case of a Paid Subscription License the Subscriber terminates business activities or becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority.

4.2 Effect of Termination

Upon termination of this Cloud Services Subscription Agreement, all license grants provided herein shall immediately terminate and Subscriber and any of its end users shall immediately cease using Cloud Subscription Services.

5. SUBSCRIPTION FEES & PAYMENT TERMS

5.1 Subscription Fees for Website Purchases

This subsection provides the terms for Subscription Fees payable by Subscriber purchasing directly from the Tiny website. Subscriber agrees during the Subscription Period to pay Tiny the Subscription Fees specified in the Authorized Method. Subscriber explicitly gives Tiny authorization to auto-renew Cloud Services subscription until cancelled by Subscriber 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 Service. 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 Subscriber cancels the Services before the month begins. For a subscription that renews annually, Subscription Fees will be paid in advance for each subsequent year unless Subscriber cancels the Services before the beginning of the subsequent year.

5.2 Subscription Fees for Negotiated Purchases

This subsection provides the terms for Subscription Fees payable by Subscriber purchasing the Cloud Subscription Services through a negotiated sale. Subscriber 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 service. The Subscription Fees are payable in advance for the Subscription Period. Tiny agrees to invoice Subscriber 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.

5.3 Payment Conditions

Subscription Fees are non-refundable and non-transferable. When a payment cannot be processed, Subscriber shall have thirty (30) days from the renewal date to submit payment in order to retain Cloud Subscription Services. 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 Agreement.

5.4 Taxes

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

6. SUBSCRIBER PERSONAL DATA

6.1 Privacy Policy

Tiny’s privacy policy is detailed on the Tiny website at https://about.tiny.cloud/legal/privacy/.

6.2 EU Data Protection Directives

Tiny must comply with the principles of the European Union Data Protection Directive 95/46, 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 Subscriber. Subscriber grants Tiny permission to place session cookies on their computer for the duration of any session. Tiny will not place residual cookies on a Subscriber’s computer. Subscriber hereby warrants that it is aware of regional and national data privacy laws and regulations and will comply with all such laws in the use of Cloud Subscription Services. In particular, Subscriber warrants that it will not use the Cloud Subscription Services in violation of any data privacy laws in the United States, Europe or elsewhere in the world. Subscriber hereby represents that it will make this warranty as long as this Cloud Subscription Services Agreement is in force.
Tiny collects “personal data” only for the purpose of identifying Subscribers of the Cloud Subscription Services. Subscriber may request the deletion of “personal data” in accordance with the provisions of the GDPR and other relevant legislation. Such requests shall be directed to legal@tiny.cloud.

6.3 Subscriber Account, Password & Security

Upon completing the registration process, Subscriber shall receive credentials to allow Subscriber to use Cloud Subscription Services. Subscriber is responsible for maintaining the confidentiality of the account and is fully responsible for all activities that occur under Subscriber’s account. Subscriber agrees to immediately notify Tiny of any unauthorized use of Subscriber’s account or any other breach of security. Tiny is not liable for any loss or damage arising from Subscriber’s failure to comply with this Section 6.  Cloud Subscription Services may prevent Subscriber from accessing the Subscriber Services until its identity can be confirmed if an account designation is used to access Cloud Subscription Services from more than one location or from multiple locations in sequence at once.

6.4 API Key

The use of some Cloud Subscription Services requires a secure passcode (“API Key”), which is directly associated with Subscriber’s account. Subscriber is solely responsible for the activity that occurs on Subscriber’s account, and for keeping Subscriber’s account secure, including the API Key. Subscriber is not permitted to use another account without permission. Subscriber must notify Tiny immediately of any breach of security or other unauthorized use of Subscriber’s account.

7. AVAILABILITY AND TECHNICAL SUPPORT

7.1 System Availability

Tiny will make commercially reasonable efforts to make Software available within the defined uptime percentage of at least 99% during the monthly billing period. System unavailability for the purposes of maintenance and upgrade will be scheduled if required early Monday mornings (US East Coast time). All planned outages will be advised on the Tiny website or via email prior to the event.

7.2 Updates

Tiny will provide Subscriber’s with updates when available and at its discretion. Tiny is under no obligation to develop any future functionality or enhancements. If an update for Cloud Subscriber Services are made available, it shall automatically replace the previous version of the product.  Where possible Tiny will schedule Subscriber Services updates during non-business hours and will provide customers with advance notice on the Tiny website or via email prior to the event.

7.3 Technical Support

7.3.1 Technical Support for Paid Subscription Licenses

(a) Nature of Paid Subscriber Support

Tiny offers two levels of technical support service (“Technical Support”) to Subscribers with a Paid Subscription License under this Cloud Services Subscription Agreement: (a) Professional Support and (b) Enterprise Support. The level of Support Subscriber is entitled to is shown on the Authorized Method.

Support shall cover the use of the Paid Subscription Service. During the Subscription Period, Tiny will provide technical support for problems in the operation of the Cloud Subscription Services in accordance with the following conditions:

  1. Professional Support: Subscriber is entitled to Support in accordance with the provisions of Schedule A.
  2. Enterprise Support: Subscriber is entitled to Support in accordance with the provisions of Schedule A.
(b) Access to Support

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

(c) Support Conditions

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

  1. Subscriber makes reasonable efforts to solve the problem after consulting with Tiny;
  2. Subscriber provides Tiny with sufficient information and resources to correct the problem either at Tiny’s offices or via remote access to Subscriber’s site, as well as access to the personnel, and hardware involved in discovering the problem; and
  3. Subscriber procures, installs and maintains all equipment necessary to operate Cloud Subscription Services.
(d) Service Exclusions

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

  1. the problem is caused by Subscriber’s negligence, hardware malfunction or other causes beyond the reasonable control of Tiny;
  2. the problem may be attributed to third party software not licensed through Tiny;
  3. Subscription Fees have not paid by Subscriber; or
  4. Technical Support will not be provided directly to Subscriber’s Customers.

7.3.2 Technical Support for No Charge Subscription Licenses

Subscribers with a No Charge Subscription License are not entitled to Technical Support.

7.3.3 Technical Support for Trial Subscription Licenses

Subscribers with a Trial Subscription License are entitled to Professional Level Support during the evaluation term.

7.4 Changes to Cloud Subscription Services

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

8. WARRANTY AND LIABILITY

8.1 Limitation of Liability

Tiny’s total liability under this Cloud Services Subscription Agreement shall be limited to the amount paid by Subscriber under this Cloud Services Subscription Agreement. In no event shall Tiny be liable for costs of procurement of substitute goods or technology, loss of profits, or for any indirect, special, exemplary, punitive, consequential or incidental damages, even if Tiny has been advised of the possibility of such damages.

In no event will Tiny be liable for fines or penalties imposed on or by Subscriber. Furthermore, Tiny disclaims any liability for loss of or inaccuracy of Subscriber’s data or the data maintained by Subscriber on behalf of others. Tiny also disclaims liability and/or responsibility for violations of applicable privacy laws and regulations, or for breaches of security of hardware, Cloud Subscription Services or systems for which Subscriber is responsible.

Subscriber hereby agrees that Tiny will not be liable for loss of or damage to goodwill or “costs of cover” (including, without limitation, costs of procuring substitute products or services) which arise directly or indirectly out of the purchase, sale, use of and/or inability to use Cloud Subscription Services provided in connection with this Cloud Services Subscription Agreement, whether such damages are based upon contract, tort, intentional conduct, equity or pursuant to some other theory, whether the possibility of such damages was made known to or was foreseeable by Tiny and whether such damages are asserted by Subscriber or a third party.

Subscriber agrees to assume the responsibility for insuring against or otherwise bearing the risk of damages in excess of the liability of Tiny. The limitations of liability set forth herein are intended to limit Tiny’s liability and will apply notwithstanding the failure of the essential purpose of any remedy.

Any action claim or proceeding relating to these terms and conditions, and the Cloud Subscription Services provided in connection with the Cloud Services Subscription Agreement or the transactions contemplated by the terms and conditions of said Cloud Services Subscription Agreement, must be brought within twelve (12) months following the action or event giving rise to such action, claim or proceeding. Subscriber agrees to use reasonable efforts to mitigate any damages sustained by Subscriber pursuant to or in connection with the use of or Subscriber’s inability to use the Cloud Subscription Services provided in connection with this Cloud Services Subscription Agreement.

Notwithstanding the foregoing, the disclaimer of warranties and/or the disclaimer and/or limitation of damages will not be deemed to disclaim liability specifically imposed on Tiny by statute or regulation, to the extent such liability cannot be waived or disclaimed. Some jurisdictions do not allow the disclaimer of implied warranties or the exclusion or limitation of liability for consequential or incidental damages, so the disclaimers or limitations set forth herein may not fully apply. To the extent that the disclaimers and/or limitations set forth herein are not fully enforceable under applicable law, Subscriber may have other legal rights which vary from jurisdiction to jurisdiction.

8.2 Remedies for Infringement

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

9. CONFIDENTIALITY

The Cloud Subscription Services, Software, and documentation contain valuable trade secrets that are the sole property of Tiny, and Subscriber agrees to use reasonable care to prevent other parties from learning of the trade secrets. Subscriber must take reasonable care to prevent unauthorized access to or duplication of the Cloud Subscription Services, Software and documentation. This section does not apply to any information that (a) is now, or subsequently becomes, through no act or failure to act on the part of Subscriber, generally known or available; (b) is known by Subscriber at the time of receiving such information, as evidenced by the Subscriber’s contemporaneous written records; (c) is subsequently provided to the Subscriber by a third party, as a matter of right and without restriction on disclosure; or (d) is required to be disclosed by law, provided that Tiny is given prior written notice by Subscriber of any such proposed disclosure.

10. GENERAL

10.1 Assignment

Tiny may freely assign this Cloud Services Subscription Agreement without restriction. Neither this Cloud Services Subscription Agreement nor any rights under this Cloud Services Subscription Agreement may be assigned or otherwise transferred by Subscriber, 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 in its absolute discretion. Subject to the foregoing, this Cloud Services Subscription 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 Subscriber’s rights hereunder shall be effective unless and until the purported assignee agrees in writing to be bound by all of Subscriber’s obli­gations hereunder.

10.2 Waiver

Tiny’s failure to act under this Cloud Services Subscription Agreement shall not indicate a waiver of rights under this Cloud Services Subscription Agreement. No waiver of any provision of this Cloud Services Subscription Agreement shall be valid unless made in writing and signed by Tiny. The failure of Tiny to require the performance of any term or obligation of this Cloud Services Subscription Agreement or the waiver by Tiny of any breach of this Cloud Services Subscription Agreement shall not prevent any subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach.

10.3 US Export Restrictions

The Cloud Subscription Services may be subject to certain export restrictions of the United States Government. If Subscriber is (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 Subscriber may not install, download, access, use, or license the Cloud Subscription Services. By accepting the terms of this Cloud Services Subscription Agreement, Subscriber warrants and represents to Tiny that (1) Subscriber does not match the criteria set forth in (a), (b), or (c) above, (2) that Subscriber will not export or re-export the Cloud Subscription Services 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 Subscriber export privileges.

10.4 Governing Law

This Cloud Services Subscription Agreement is governed by and construed and enforced in accordance with the substantive laws in force in the Santa Clara County, State of California, USA, and in no event shall the United Nations Convention on Contracts for the International Sale of Goods govern this Cloud Subscription Services Agreement.

10.5 Notices

Tiny may provide Subscriber with notices, including those regarding changes to these terms of service, by e-mail or postings on the Services website. Subscriber may send a notice relating to this Cloud Services Subscription Agreement by delivery-assured service to the Chief Financial Officer, Tiny Technology Inc, 2100 Geng Road, Suite 220, Palo Alto, CA 94303, United States of America.

10.6 U.S. Government End Users

The Cloud Subscription Services are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Subscription Services” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212, the Commercial Computer Subscription Services are 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.

 

TINY CLOUD SERVICES SUBSCRIPTION AGREEMENT
Schedule A

Tiny Cloud Subscription Services Technical Support Conditions

PROFESSIONAL SUPPORT

1. TINY TECHNICAL SUPPORT SERVICE LEVELS

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

  1. Response times within the Service Hours: 2 business days. (Business days are based on Service Hours as defined in Section A.2. below).
  2. Subscriber is 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 Subscriber representative through the Tiny technical support form on the Tiny website at: https://support.tiny.cloud/. Tiny’s response to support requests submitted by email will be delayed. After submission include the Tiny Technical Support case number that was advised by email in response to the initial reporting.

4. APPLICATION TO TINY PRODUCTS

Tiny 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 TECHNICAL SUPPORT SERVICE LEVELS

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

  1. 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
  2. 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
  3. 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:

  1. California, US office: 9:00 AM to 5:00 PM Monday to Friday local time excluding US public holidays.
  2. Queensland, Australia office: 7:30 AM to 3:30 PM Monday to Friday local time excluding Queensland public holidays

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

3. PROBLEM CATEGORIES

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

3. REPORTING OF PROBLEMS

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

4. APPLICATION TO TINY PRODUCTS

Tiny 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).