Date 14/06/2024
Reference: Trading System Support Ltd .
Hereafter known as “TSS” Terms and Conditions:
END USER LICENSE AGREEMENT (Version 1.5 June 2024)
BY CHECKING THE ACCEPTANCE BOX, DOWNLOADING, INSTALLING OR OTHERWISE USING TSS SOFTWARE PRODUCTS, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU ACCEPT THESE TERMS ON BEHALF OF ANY EMPLOYER OR BUSINESS ENTITY, SUCH ENTITY IS THE CUSTOMER AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY TO THIS EULA.
Language. Any translation we may provide is for convenience and in the event of a conflict between the English and non-English versions, the English version shall prevail and govern.
License to Use TSS SOFTWARE Products.
Subject to these Terms and payment of the license fee , we grant to Customer a non-sublicensable, non-transferable, non- exclusive, revocable, limited license to use the TSS SOFTWARE Products for: (i) Customer’s personal and non-commercial purposes, if Customer are an individual, or (ii) Customer’s internal business purposes, if Customer are a company or other legal entity, and not for resale or further distribution. Customers right to use the TSS SOFTWARE Products is limited by all terms and conditions set forth in these Terms.
TSS UK Ltd and its licensors retain all right, title and interest in and to the TSS SOFTWARE products and all associated Documentations, including all related intellectual property rights. Applicable intellectual property laws protect the TSS SOFTWARE Products, including United States copyright law and international treaties.
1.1. Ownership and License.
TSS SOFTWARE products are owned or licensed by TSS UK Ltd (“TSS”) with its principal office at 11 Brooke Trading estate, Lyon Road RM1 2AT. These license terms govern the use of all TSS SOFTWARE Products and Services accessed or used by Customer. TSS SOFTWARE is licensed for distribution through Authorized Resellers on a limited, non-exclusive basis, but all use of the TSS SOFTWARE is subject to the terms of this EULA. TSS SOFTWARE Products means TSS proprietary software which may be accessed and used subject to the terms of this EULA.
1.2. Use of TSS SOFTWARE Products.
Subject to the terms of this EULA, TSS grants to Customer a world-wide, non-exclusive, non-transferable and non-sublicensable right for its Authorized Users to use TSS SOFTWARE Products for Customer’s internal business operations and shall be permitted solely for the term and the number of licensed Users purchased and specified in an Order Form. Customer shall be directly responsible for any violations of this EULA by any party that it allows to access TSS SOFTWARE Products.
1.3. Services.
Support services provided by TSS will be made available to Customer in accordance with TSS or Reseller’s Support Policy and SLA for the Customer’s Support Term.
1.4. Use Restrictions.
Except as expressly permitted by this EULA, Customer will not, nor permit or authorize anyone to:
1.5. TSS Marks.
“TSS”, the TSS SOFTWARE logo, and all TSS marks and any other product or service name or slogan displayed on the TSS SOFTWARE Products are trademarks of TSS Software. and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of TSS SOFTWARE or the applicable trademark holder. Customer may not use any meta- tags or any other “hidden text” utilizing “TSS”, TSS or any other name, trademark or product or service name of TSS SOFTWARE without TSS’s prior written permission. In addition, the look and feel of the TSS SOFTWARE Products, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of TSS SOFTWARE and may not be copied, imitated or used, in whole or in part, without TSS’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the TSS SOFTWARE Products are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by TSS. For so long as Customer has the right to access and use TSS SOFTWARE Products, TSS grants to Customer a non- exclusive, non-transferable and limited right to use TSS Marks for the sole purpose of promoting any permitted use of TSS SOFTWARE Products. Customer may not remove any copyright, trademark or other proprietary notice displayed or included in the TSS SOFTWARE Products.
1.6. Registration Process.
If Customer registers for the TSS SOFTWARE Products, Customer must provide certain limited information as required for the registration process. TSS has the right to reject any order or refuse to license the TSS SOFTWARE Products to any End User or Third Party. When Customer registers for the TSS SOFTWARE Products, Customer must create a user account (“Account”). Customer will promptly update all Account information to keep it true, accurate, and complete. TSS reserves the right to require Customer to alter Customer’s username and/or password if TSS believes that Customer’s Account is no longer secure, but TSS has no obligation to do so. Customer will not: (a) provide any false information as part of Customer’s Account information; (b) create an Account for anyone other than Customer; (c) create or use more than one Account at any given time; (d) transfer Customer’s Account to anyone else; (e) permit others to use Customer’s Account; or (f) use or access other persons’ Accounts. In the event of a material breach of any of these obligations set out in this Section 1.6, TSS may suspend or terminate Customer’s Account upon giving reasonable notice of the breach. Any terms hereof that contemplate continuing effectiveness, including, without limitation, terms regarding ownership, disclaimer of warranties, limitations of liability, indemnity, and governing law/venue shall survive any termination of Customer’s Account and/or this EULA.
1.7. Customer Compliance.
Customer and Authorized Users shall use and access the TSS SOFTWARE Products and the Service Content in accordance with this EULA. Customer shall be directly responsible for any violations of any of the forgoing by any party that it allows to access the TSS SOFTWARE Products, including Authorized Users and Authorized Third Parties. Authorized User login credentials are confidential and not permitted to be shared with any unauthorized user or third party and may not be assigned to any email alias or group address book. In the event of any unauthorized use by any third party that obtained access through Customer or any of its Authorized Users, Customer will immediately notify TSS and take all steps necessary to terminate such unauthorized use. Customer will provide TSS with such cooperation and assistance related to any such unauthorized use as TSS may reasonably request. Customer acknowledges that in order to protect transmission of Customer Data to TSS’s environment and the TSS SOFTWARE Products, it is Customer’s responsibility to use a secure encrypted connection to access the TSS SOFTWARE Products.
1.8. Responsibility for Customer Data.
Customer acknowledges and agrees that (i) Customer has sole responsibility to determine which Authorized Users gain access to the TSS SOFTWARE Products and which Customer Data such Authorized Users may access via the TSS SOFTWARE Products, (ii) TSS has no obligation to monitor any Customer Data, (iii) TSS does not control, interpret, verify or endorse the Customer Data that Customers or Authorized Users make available on the TSS SOFTWARE Products, (iv) TSS is not responsible for the accuracy, completeness, appropriateness, copyright compliance or legality of any Customer Data accessible using the TSS SOFTWARE Products, (v) Customer, and not TSS, is fully responsible for all storage and backup of Customer Data; and (iv) subject to Section 3, Customer is solely responsible for the uploading and/or deletion of any Customer Data placed on TSS’s environment or with the TSS SOFTWARE Products by any Authorized User. Customer is solely responsible for the development, content, operation, maintenance and use of Customer Data. Customer hereby represents and warrants on behalf of itself and its Authorized Users that (a) it has all of the rights in the Customer Data necessary for the, use, display, publishing, sharing and distribution of the Customer Data in the course of using the TSS SOFTWARE Products; and (b) the storage, display, publication, performance, integration, use and transmission of Customer Data through the TSS SOFTWARE Products does not violate any law or these Terms.
1.9. Authorized Third Parties.
Customer is solely responsible for its Authorized Third Parties’ use of the TSS SOFTWARE Products. If Customer chooses to have an Authorized Third Party access TSS’s environment or the TSS SOFTWARE Products on its behalf, Customer acknowledges that Customer, and not TSS, is solely responsible and liable for (i) the acts and omissions of such Authorized Third Party in connection with the TSS SOFTWARE Products; (ii) any Customer Data that Customer requests or instructs the Authorized Third Party to include in the TSS SOFTWARE Products; and (iii) the issuance, removal and/or deactivation of the credentials issued for such Authorized Third Party. Further, if Customer requests or instructs an Authorized Third Party to import or upload Customer Data to the TSS SOFTWARE Products, such actions by the Authorized Third Party shall be deemed to be the actions of Customer.
Indemnification and Warranty
Indemnification by Customer. Customer shall defend, indemnify and hold harmless TSS , its affiliates and each of their respective employees, contractors, directors, officers, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to any third party claims alleging: (i) violation of any privacy or other rights of any third party or any Authorized User in connection with the TSS SOFTWARE Products (except to the extent arising from an IP Claim) or (ii) any breach of Section 2.2.
1.10. License Grant from Customer.
Customer hereby grants a royalty-free license to TSS SOFTWARE to use, copy, transmit and modify Customer’s Data for the purposes of providing the Services and the limited purpose of aggregating the use data in an anonymous fashion for TSS analytics and assessment of the use of the TSS Products. Customer Data will not be sold and does not contain any personally identifiable information.
1.11. Restricted Areas of the TSS SOFTWARE Products.
Certain parts of the TSS SOFTWARE Products, including account management features, may be password restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify TSS or Authorized Reseller if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer is the individual who undertakes such activities. Customer agrees to immediately notify TSS of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the TSS SOFTWARE Products that is known to Customer.
2.1 TSS warrants that the TSS SOFTWARE will operate substantially in conformity with the TSS SOFTWARE Product description and the applicable Documentation (“Warranty”). Customer must assert any claim for breach of this warranty in writing within 21 days of any fault or failure in the TSS SOFTWARE Products. Customer’s exclusive remedy and TSSs’ sole liability with regard to any breach of this warranty will be, at TSSs’ option and expense, to either: (i) repair or replace the non-conforming Software; or (ii) if the Software was obtained by purchase, refund to Customer the fees paid by Customer for the non-conforming TSS Software.
2.2. If TSS elects to refund the applicable fee paid for the non-conforming TSS SOFTWARE pursuant to Section 2.1(ii), then: (i) Customer shall promptly return or demonstrate to TSS’s reasonable satisfaction that it has destroyed the non-conforming TSS SOFTWARE and any other related materials provided by TSS or Reseller; and (ii) the right to access or use such non-conforming TSS SOFTWARE will automatically terminate.
2.3. TSS will have no liability for any warranty claim, or any obligation to correct any defect or problem with the TSS Software, to the extent that it arises out of: (i) any use of the TSS SOFTWARE not in accordance with the Documentation; (ii) any unauthorized modification or alteration of the TSS Software; or (iii) any use of the TSS SOFTWARE in combination with any third-party software or hardware not specified in the Documentation.
2.4. TSS warrants that any Consulting Services will be performed using reasonable care and skill consistent with generally accepted industry standards. For any claimed breach of this warranty, Customer must notify TSS of the warranty claim within thirty (30) days of Customer’s receipt of the applicable Consulting Services. Customer’s exclusive remedy and TSS’s sole liability with regard to any breach of this warranty will be at TSS’s option and expense to either: (i) re-perform the non-conforming Consulting Services; or (ii) refund to Customer the fees paid for the non-conforming Consulting Services. Customer shall provide reasonable assistance to TSS in support of its efforts to furnish a remedy for any breach of this warranty.
2.5. EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, TSS MAKES NO OTHER WARRANTIES AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF TSS HAS BEEN INFORMED OF SUCH PURPOSE). TSS DOES NOT WARRANT THAT THE TSS SOFTWARE PRODUCTS, CONSULTING SERVICES OR TRAINING WILL BE ENTIRELY FREE FROM DEFECTS OR OPERATE UNINTERRUPTED OR ERROR FREE. DATA INCLUDED IN ANY TSS SOFTWARE PRODUCT IS PROVIDED “AS IS.”
3.1. Fees.
Customer shall pay any fees due in accordance with the payment terms either to TSS or to an Authorized Reseller and as set out in an Order Form. Payments are non-cancelable, non-refundable and non-creditable with no right of offset or suspension, except as otherwise expressly provided in this EULA. Unpaid fees may be subject to a late payment fee equal to 4% per month or as set out in an Order Form on any outstanding balance, or the maximum rate permitted by law, whichever is the greater. Fees for Consulting or Training Services are exclusive of travel costs and expenses. If Customer fails to make any payment when due, TSS may, without limiting its other rights and remedies, temporarily suspend access to TSS SOFTWARE Products or accelerate Customer’s unpaid fee obligations so that all such obligations become immediately due and payable. If Customer uses TSS SOFTWARE Products with capacity-based licensing or metered usage enabled, Customer shall pay for any use or consumption of such TSS SOFTWARE Products in excess of the authorized quantities.
3.2. Taxes.
Fees do not include sales, use, withholding, value-added or other taxes or duties. Customer agrees to pay all applicable taxes, public fees, duties, deductions or withholdings for which TSS or Authorized Reseller is required to pay or account, exclusive of any tax on TSS’s income. Customer shall directly pay any such taxes or duties assessed against it, unless Customer provides TSS or Authorized Reseller in a timely manner with a valid certificate of exemption or other evidence that items are not taxable.
4.1. Limitation of Liability.
Except for (i) TSS’s indemnification obligations under this EULA, or (ii) death or bodily injury caused by TSS’s negligence; TSS’s maximum, cumulative liability for any claims, losses, costs (including attorney’s fees) and other damages arising under or related to this EULA and in connection with the license or use of the TSS SOFTWARE Products, regardless of the form of action, whether in contract, tort (including negligence or strict liability) or otherwise, will in no event exceed the greater of the amount of fees paid by the Customer for the twelve (12) month period preceding the loss or damages giving rise to the claim and attributable to the specific products or services giving rise to such damages.
4.2. Exclusion of Damages.
IN NO EVENT WILL TSS, ITS AFFILIATES, AUTHORIZED RESELLERS OR THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY LOSS OF SAVINGS, PROFITS OR REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR REPUTATION, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. TSS SOFTWARE PRODUCTS ARE NOT INTENDED FOR HIGH-RISK ACTIVITIES AND TSS WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE TSS SOFTWARE PRODUCTS.
4.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS CONTAINED IN THIS EULA ARE INDEPENDENT OF ANY AGREED REMEDY SPECIFIED IN THIS EULA AND WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY AGREED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT TSS MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF TSS’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW.
4.4. No Third-Party Beneficiaries.
The warranties and other obligations of TSS under this EULA run only to, and for the sole benefit of Customer, notwithstanding any rights of Authorized Third Parties to access or use the TSS SOFTWARE Products. Except as otherwise mandated by applicable law, no person or entity will be considered a third-party beneficiary of this EULA or otherwise entitled to receive or enforce any rights or remedies in relation to this EULA.
4.5. Customer will indemnify and hold TSS, its affiliates and any Authorized Reseller harmless from any costs, damages, expenses, and liability caused by Customer’s use of the TSS SOFTWARE Products and Service Content, Customer’s violation of this EULA, or Customer’s violation of any rights of a third party through use of the TSS SOFTWARE Products or Service Content.
5.1. Ownership.
Customer retains all right, title and interest in and to its proprietary data used by Customer in connection with the TSS SOFTWARE Products (“Customer Data”). TSS retains all right, title and interest in and to the TSS SOFTWARE Products and if applicable, all deliverables resulting from performance of Consulting Services, including all know how, methodologies, designs and improvements to the TSS SOFTWARE Products, but excluding any Customer Data incorporated into any such deliverable. TSS hereby grants Customer a non-exclusive license to use any deliverables or work product that are the result of any Consulting Services in connection with Customer’s authorized use of the TSS SOFTWARE Products.
5.2. Retention of Rights.
No title or ownership of any proprietary or other rights related to TSS SOFTWARE Products is transferred or sold to Customer or any Authorized User pursuant to this EULA. All intellectual property rights not explicitly granted to Customer are reserved and TSS, its affiliates, and their respective suppliers or licensors, where applicable retain all right, title and interest in and to the TSS SOFTWARE Products, including all intellectual property rights embodied therein, as well as to all TSS Marks.
5.3. Feedback.
TSS may provide Customer with a mechanism to provide feedback, suggestions, and ideas, if Customer choose, about the TSS SOFTWARE Products (“Feedback”). Customer agrees that TSS may, in its sole discretion, use the Feedback Customer provide to TSS in any way, including in future enhancements and modifications to the TSS SOFTWARE Products. Customer hereby grant to TSS and its assigns a perpetual, worldwide, fully transferable, sublicensable, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party. TSS will treat any Feedback Customer provide to us as non-confidential and non-proprietary.
5.4. Indemnification.
TSS shall defend, indemnify and hold Customer harmless from any damages and costs awarded against Customer as a result of a third-party claim that the TSS SOFTWARE Products, as delivered by TSS and used as authorized under this EULA, infringes upon any third-party copyright, trademark or a patent (“IP Claim”). Customer shall defend, indemnify and hold TSS harmless from any damages and costs awarded against TSS as a result of a third party claim alleging Customer’s External Use of the TSS SOFTWARE Products or use of Customer Content with TSS SOFTWARE Products, infringes upon any third party copyright, trademark or patent to the extent any such infringement arose from Customer’s use or combination of the TSS SOFTWARE Products with any data, content, services or software or other materials not provided by TSS. Each party’s indemnification obligation is subject to:
5.5. Exceptions.
TSS will not be liable for any IP Claim arising from or based upon: (i) any unauthorized use, reproduction or distribution of the TSS SOFTWARE Products; (ii) any modification or alteration of the TSS SOFTWARE Products without the prior written approval of TSS; (iii) use of the TSS SOFTWARE Products in combination with any other software, hardware, third party data or other materials not provided by TSS; (iv) use of a prior version of the TSS SOFTWARE Products, if use of a newer version of the TSS SOFTWARE Products would have avoided such claim; or (v) any Third Party Materials provided with the TSS SOFTWARE Products.
5.6. Remedies.
If the TSS SOFTWARE Product becomes, or in TSS’s opinion is likely to become, the subject of an IP Claim, TSS may, at its option and expense, either: (i) obtain the right for Customer to continue using the TSS SOFTWARE Products in accordance with this EULA; (ii) replace or modify the TSS SOFTWARE Products so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably provided by TSS, terminate all rights to use the TSS SOFTWARE Products (without need for a ruling by a court or arbitrator) and refund as applicable a pro rata portion of prepaid subscription fees from the date of purchase. Customer agrees to delete or destroy any copies of the TSS SOFTWARE after the effective date of any such termination.
5.7. SOLE AND EXCLUSIVE REMEDY.
THIS SECTION 5 STATES TSS’S, ITS AFFILIATES AND AUTHORISED RESELLER’S SOLE AND ENTIRE OBLIGATION AND LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE RIGHT AND REMEDY, FOR INFRINGEMENT OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.
6.1. TSS does not provide Customer with the equipment to access the TSS SOFTWARE Products. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the TSS SOFTWARE Products (e.g., charges by Internet service providers).
6.2. TSS reserves the right to modify or upgrade, all or any portion of the TSS SOFTWARE Products and will provide notice to Customer of any such change which affects Customer’s use and license of the TSS SOFTWARE Products.
7.1. Customer must comply with all applicable laws when using the TSS SOFTWARE Products. Except as may be expressly permitted by applicable law, or as TSS SOFTWARE may authorize expressly in writing. Customer will not, and will not permit anyone else to: (i) store, copy, modify, distribute, or resell any of the information; audio, visual, and audio visual works, or other content made available on the TSS SOFTWARE Products (collectively, “Service Content”) or compile or collect any Service Content as part of a database or other work; (ii) use any automated tool (e.g., robots, spiders) to access or use the TSS SOFTWARE Products or to store, copy, modify, distribute, or resell any Service Content; (iii) rent, lease, or sublicense Customer’s access to the TSS SOFTWARE Products to another person;
Customer’s own personal use, or, if Customer is a legal entity, for Customer’s internal business purposes; (v) circumvent or disable any digital rights management, usage rules, or other security features of the TSS SOFTWARE Products; (vi) use the TSS SOFTWARE Products in a manner that overburdens, or that threatens the integrity, performance, or availability of, the TSS SOFTWARE Products; or (vii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the TSS SOFTWARE Products or any Service
8.1. TSS’s Software Products may display, or contain links to, third party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by other users or other third parties on the TSS SOFTWARE Products, or which is accessible through or may be located using the TSS SOFTWARE Products (collectively, “Third Party Content”) are those of the respective authors or producers and not of us or TSS’s shareholders, directors, officers, employees, agents, or representatives. TSS does not control Third Party Content and cannot and do not guarantee the accuracy, integrity or quality of such Third-Party Content. TSS is not responsible for the performance of, we do not endorse, and we are not responsible or liable for, any Third-Party Content or any information or materials advertised in any Third-Party Content. By using the TSS SOFTWARE Products, Customer may be exposed to content that is offensive, indecent, or objectionable. TSS are not responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any goods, services, or information available on or through any third-party service or Third-Party Content. It is Customer’s responsibility to evaluate the information, opinion, advice, or other content available on and through the TSS SOFTWARE Products.
9.1. Each Party will hold in confidence the other Party’s Confidential Information and will not disclose or use such Confidential Information except as necessary to exercise its express rights or perform its express obligations hereunder. Any Party’s disclosure of the other Party’s Confidential Information may be made only to those of its employees or consultants who need to know such information in connection herewith and who have agreed to maintain the Confidential Information as confidential as set out herein. Notwithstanding the foregoing, a Party may disclose the other Party’s Confidential Information to the extent that it is required to be disclosed in accordance with an order or requirement of a court, administrative agency or other governmental body, provided that such Party, to the extent permitted by law, provides the other Party with prompt notice of such order or requirement in order that it may seek a protective order. Each Party’s confidentiality obligations hereunder will continue for a period of three (3) years following any termination of this EULA, provided, however, that each Party’s obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law. The Parties acknowledge and agree that the TSS SOFTWARE Products and all pricing information shall be treated as the Confidential Information of TSS and Authorized Reseller. Customer will maintain reasonable access controls and system security to safeguard the TSS SOFTWARE Products.
10.1. Term.
The EULA is effective upon the earlier of the effective date of the first Order Form or the date Customer first accesses or uses TSS SOFTWARE Products and shall remain in effect until terminated (i) as set out in this Section; or (ii) automatically upon expiration of all rights to use any TSS SOFTWARE Products pursuant to one or more Order Forms.
10.2. Termination for Breach or Insolvency.
TSS or the Customer may terminate this EULA or any applicable Order Form, license or, subscription (without resort to court or other legal action) if the Customer fails to cure any material breach within ten (10) days after written notice of such breach provided that TSS or the customer may terminate this EULA immediately upon any breach of Section 1.4 or if Customer terminates or suspends its business without a successor or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If TSS SOFTWARE Products are purchased through an Authorized Reseller, TSS may terminate any right to use the TSS SOFTWARE Products pursuant to this Section in the event TSS fails to receive payment for such TSS SOFTWARE Products from the Authorized Reseller.
10.3. The Customer may terminate this EULA or any applicable Order Form, license or subscription if the TSS SOFTWARE Products fail to meet the agreed SLA criteria or fail to materially perform for a period of more than 30 days or where TSS is in material breach of its obligations under this EULA which is not cured within thirty
10.4. Effect of Termination.
Unless earlier terminated, Customer’s rights with respect to TSS SOFTWARE Products and Services, including any related Software license or subscription, will end upon termination of this EULA or expiration of any applicable subscription or term. Unless earlier terminated, Customer’s right to receive Support will end upon termination of this EULA or expiration of the Support Term. Upon termination of this EULA or the right to use any TSS SOFTWARE Products or Services, Customer shall: (i) immediately cease using the applicable TSS SOFTWARE Products and Services, including any access by Authorized Third Parties; and (ii) certify to TSS within thirty
10.5. Support Term.
Where Customer receives support services from an Authorized Reseller, such support services will be provided pursuant to a separate written agreement between Customer and the Authorized Reseller.
11.1. Definitions. Unless defined elsewhere in this EULA, the capitalized terms utilized in this EULA are defined below.
Authorized Third Party.
TSS pursuant to an Order Form. Services does not include TSS SOFTWARE Products.
11.2. Recordkeeping, Verification and Audit.
While this EULA is in effect and for one (1) year after the effective date of its termination, upon request by TSS or Authorized Reseller but not more than once per calendar year, Customer shall conduct a self-audit of its use of the TSS SOFTWARE Products and, within ten (10) business days after receipt of such request, submit a written statement to TSS or Authorized Reseller verifying that it is in compliance with the terms and conditions of this EULA. TSS or Authorized Reseller shall have the right, on its own or through its designated agent or third-party accounting firm, to conduct an audit of Customer’s use and deployment of the TSS SOFTWARE Products and monitor use of any TSS SOFTWARE Products, in order to verify compliance with this EULA. TSS or Authorized Reseller’s written request for audit will be submitted to Customer at least fifteen (15) days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to Customer’s business. If such audit discloses that Customer is not in material compliance with the terms of this EULA, then Customer shall be responsible for the reasonable costs of the audit, in addition to any other fees or damages to which TSS may be entitled under this EULA and applicable law.
11.3. Third Party Materials.
TSS SOFTWARE Products may include certain open source or other third-party software, data, or other materials (the “Third Party Materials”) that are separately licensed by their respective owners. Third Party Materials are identified in the Documentation. TSS represents that if the TSS SOFTWARE Products are used in accordance with this EULA, such use shall not violate any license terms for the Third-Party Materials. TSS makes no other representation, warranty, or other commitment regarding the third-party materials, and hereby disclaims any and all liability relating to customer’s use thereof.
11.4. Connectivity to Third Party Applications.
Use of TSS SOFTWARE Products to connect with or access third party web-based applications or services may be governed by terms and conditions established by such third party. Third-party application programming interfaces (“API”) are not managed by TSS, and TSS shall have no liability for connectivity if any third- party APIs are changed or discontinued by the respective third parties.
11.5. Evaluation.
If Customer is provided TSS SOFTWARE Products for evaluation purposes (“Evaluation Products”), use of the Evaluation Products is only authorized in a non-production environment and for the period limited to 30 days unless agreed in writing by both parties. TSS will make the applicable Evaluation Products available to Customer for its internal business operations on an evaluation basis free of charge until the earlier of: (a) the end of the evaluation period; (b) the start date of any purchased subscription ordered by Customer; or (c) termination by TSS or Authorized Reseller in its sole discretion. Notwithstanding any other provision in this EULA, licenses for the Evaluation Products are provided “AS IS” without indemnification, Support, or warranty of any kind, expressed or implied. In no event will TSS’s maximum cumulative liability for Evaluation Products exceed one thousand US Dollars ($1,000).
11.6. Assignment.
Customer may not assign or transfer the license in the TSS SOFTWARE Products or this EULA or its rights and obligations hereunder to any third party. For purposes of this Section, any change of control of Customer, whether by merger, sale of equity interests or otherwise, will constitute an assignment requiring the prior written consent of TSS. Any attempt by Customer to assign this EULA or its rights and obligations hereunder in violation of this Section will be null and void. TSS is free to assign or transfer any or all of its rights or obligations under this EULA at its discretion. All terms of this EULA will be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of TSS and Customer.
11.7. Statistical Data Collection and Use.
TSS may collect and use certain Statistical Data to enable, optimize, support, and improve performance of the TSS SOFTWARE Products. “Statistical Data” means non-personal statistical, demographic, or usage data or metadata generated in connection with any use of the TSS SOFTWARE Products. Statistical Data does not include any personally identifiable information or any personal data and is owned by TSS.
11.8. Compliance with Laws.
Customer agrees at all times to comply with all applicable laws and regulations in its performance of this EULA whilst adhering to the United Kingdom’s Financial Conduct Authority Rules and Guidance, which may include, without limitation export control laws and regulations of the U.S., E.U. and other governments, and regulations declared by the U.S. Department of the Treasury Office of Foreign Assets Control, the U.S.
Department of Commerce, the Council of the E.U. and their counterparts under applicable law, (“Export Control Laws”), including all end user, end-use and destination restrictions imposed by such Export Control Laws. Customer will indemnify, defend and hold harmless TSS and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from Customer’s failure to comply with any Export Control Laws.
11.9. Governing Law and Jurisdiction.
This EULA is governed by the laws of England excluding any conflict of law rules or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Any suit, action or proceeding arising out of or relating to this EULA will be brought before the courts of England. Notwithstanding anything to the contrary in this EULA, either Party may at any time seek injunctive or interlocutory relief in a court of competent jurisdiction in order to protect any urgent interest of such Party, including, but not limited to, the confidentiality and use restrictions of this EULA. TO THE EXTENT AVAILABLE UNDER APPLICABLE LAW, CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL REGARDING DISPUTES RELATED TO THIS EULA.
11.10. Force Majeure.
Neither TSS nor the customer shall be liable to the other for any delay or failure to perform any obligation under this EULA if the delay or failure is due to unforeseen events, which occur after the effective date of this EULA and which are beyond the reasonable control of TSS orthe customer, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, failure or diminishment of power, telecommunications or data networks or services, malicious attacks or materials shortage in so far as such an event prevents or delays TSS or the customer from fulfilling its obligations and TSS or the customer is not able to prevent or remove the force majeure at reasonable cost.
11.11. Notices.
All notices concerning a default, breach or violation of this EULA must be in writing and delivered to TSS SOFTWARE UK Ltd (“TSS”) with its principal office at 11 Brooke Trading estate, Lyon road RM1 2AT, 020 7118 1061 or email:
