Tiny Cloud Services Subscription Agreement

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

Effective March 23, 2021.

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:

“API Key” shall have the meaning set forth in Section 6.4.
“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.
“Business Entity” means an incorporated organization or a registered business name.
“Cloud Services Subscription Agreement” shall have the meaning set forth in the Preamble provided herein and include any sales forms.
“Confirmation Email” means an email sent by Tiny that details the subscription start date, subscription length and the subscription end date.
“Directives” shall have the meaning set forth in Section 6.2.
“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.
“Editor Load” means an event that occurs each time TinyMCE is initialized in Your application. For example, if 100 users load TinyMCE 10 times each, there were 1,000 editor loads. This is recorded with a request to our server when the “init” function is called in TinyMCE.
“Purchase Confirmation Email” means an email sent by Tiny that details the subscription start date, subscription length and the subscription end date.
“Software” means the software used by Tiny to provide the Cloud Subscription Services including the TinyMCE Core Editor and Tiny Premium Plugins.
“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.
“Subscriber” means You.
“Subscription Fees” shall have the meaning set forth in Section 5.
“Subscription Period” means the term for which Subscription Fees have been paid as set forth in Section 2.2 herein.
“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.
“Support” shall have the meaning set forth in Section 7.3.
“TinyMCE Core Editor” shall mean the software for the TinyMCE editor and does not include Tiny Premium Plugins.
“Tiny Premium Plugins” shall mean the Software listed on the Tiny website at https://apps.tiny.cloud/.
“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:

Trial Subscription License – see Section 2.1
Paid Subscription License – see Section 2.2
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 (14) 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 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 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 of this Agreement.

3. PERMITTED LICENSE USES AND RESTRICTIONS

3.1 Subscription Services Usages and Restrictions

A. The Subscriber may use the Subscription Services to:

develop software applications that interface with the Subscription Services to provide services embedded within their applications;
make the Subscription Services available to end users of their application in compliance with the terms of this agreement.

B. The Subscription Services provided to the Subscriber are non-exclusive and limited. Subscriber may not:

reverse engineer the Subscription Services or its APIs;
access the Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if Subscriber is an employee of an Tiny Technologies competitor or an Tiny Technologies competitor;
use the Subscription Services in a way that violates any criminal or civil law; or
exceed usage limits specified in the Subscription Form.

3.2 Access to Subscription Services

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

3.3 Subscription Service Usage Calculation

Use of the Subscription Service is subject to the number of Editor Loads calculated as follows:

A count of the number of Editor Loads as at the end of the month;
Tiny Technologies will compare the actual number of Editor Loads against the number of Authorized Editor Loads;
Tiny Technologies will notify the Subscriber if the actual number of Editor Loads exceeds the Authorized Editor Loads;
Subscriber will have ten (10) days to contact Tiny Technologies to increase the Authorized Editor Loads;
In the event that the Subscriber does not increase the Authorized Editor Loads by the end of the ten (10) day period, the Subscription Service will be suspended; and
The Subscription Service will be restored upon increase of the Authorized Editor Loads.

4. TERM & TERMINATION

4.1 Termination

This Agreement commences on the Effective Date and will remain in force until terminated. This Agreement shall immediately terminate if Subscriber does not pay the Subscription Fee as provided herein. Subscriber’s rights shall also immediately terminate under this Agreement without notice from Tiny Technologies if: (a) Subscriber fails to comply with any term(s) of this Agreement or (b) Subscriber terminates business activities or becomes insolvent, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority.

4.2 Effect of Termination

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

5. PAYMENT TERMS

Subscriber agrees to pay Tiny Technologies the Subscription Fee specified in the Subscription Form during the Subscription Period (“Subscription Fee”). The Subscription Fee is payable in United States dollars. A valid form of payment, such as a credit card, PayPal, or Tiny Technologies approved automatic payment, is required to subscribe to the service. The Subscription Fee is payable in advance for the Subscription Period unless Tiny Technologies agrees to invoice Subscriber according to Tiny Technologies standard terms. All customers billed manually by Tiny Technologies invoice shall be subject to net thirty (30) day term(s).

For a subscription that renews monthly, Subscription Fees are paid on a month-to-month basis and will be automatically charged unless Subscriber cancels the Service before the month begins. For a subscription that renews annually, Subscription Fees will be paid for each subsequent year unless Subscriber cancels the Service before the beginning of the subsequent year. Subscription Fees are non-refundable and non-transferable. When a payment or automatic payment cannot be processed, Subscriber shall have seven (7) days from the renewal date to submit payment in order to retain services.

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

6. SUBSCRIBER DATA

6.1 Privacy Policy

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

6.2 EU Data Protection Directives

Tiny Technologies must comply with the principles of the European Union Data Protection Directive 95/46 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, to the extent that the Directives apply to “data processors.” Subscriber grants Tiny Technologies permission to place session cookies on their computer for the duration of any session. Tiny Technologies will not place residual cookies on a Subscriber’s computer. Subscriber hereby warrants that it is aware of regional and national data privacy laws and regulations and will comply with all such laws in the use of Subscription Services. In particular, Subscriber warrants that it will not use Subscription Services in violation of any data privacy laws in the United States, Europe or elsewhere in the world. Subscriber hereby represents that it will make this warranty as long as this Agreement is in force.

6.3 Subscriber Account, Password & Security

Upon completing the registration process, Subscriber shall receive credentials to allow Subscriber to use 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 Technologies of any unauthorized use of Subscriber’s account or any other breach of security. Tiny Technologies is not liable for any loss or damage arising from Subscriber’s failure to comply with this Article 6. Subscription Services may prevent Subscriber from accessing the Subscriber Services until its identity can be confirmed if an account designation is used to access Subscription Services from more than one location or from multiple locations in sequence at once.

6.4 API Key

The use of some 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 Technologies immediately of any breach of security or other unauthorized use of Subscriber’s account.

7. AVAILABILITY AND SUPPORT

7.1 System Availability

Tiny Technologies 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 Technologies website or via email prior to the event.

7.2 Updates

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

7.3 Technical Support

7.3.1 Nature of User Support

Tiny Technologies offers two levels of technical support service (“Support”) under this Agreement: Professional Support and Enterprise Support. The level of Support Subscriber is entitled to is shown on the Official Receipt.

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

Professional Support: Subscriber is entitled to Support in accordance with the provisions of Schedule A.
Enterprise Support: Subscriber is entitled to Support in accordance with the provisions of Schedule A.

7.3.2 Access to Support

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

7.3.3 Support Conditions

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

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

7.3.4 Service Exclusions

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

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

7.4 Changes to Subscription Services

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

8. WARRANTY AND LIABILITY

8.1 Limitation of Liability

Tiny Technologies’ total liability under this agreement shall be limited to the amount paid by Subscriber under this Agreement. In no event shall Tiny Technologies 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 Technologies has been advised of the possibility of such damages.

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

Subscriber hereby agrees that Tiny Technologies 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 Subscription Services provided in connection with this 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 Technologies 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 Technologies. The limitations of liability set forth herein are intended to limit Tiny Technologies’ 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 Subscription Services provided in connection with the agreement or the transactions contemplated by the terms and conditions of said 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 Subscription Services provided in connection with this 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 Technologies 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 Technologies reasonably believes that the Subscription Services may be subject to an infringement claim, Tiny Technologies may, in its sole discretion, either: (a) substitute substantially equivalent subscription services; (b) modify the Subscription Services; or (c) terminate the license granted hereunder.

9. CONFIDENTIALITY

The Subscription Services, Software, and documentation contain valuable trade secrets that are the sole property of Tiny Technologies, 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 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 Technologies is given prior written notice by Subscriber of any such proposed disclosure.

10. GENERAL

10.1 Assignment

Tiny Technologies may freely assign this Agreement without restriction. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Subscriber, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Tiny Technologies, which may be withheld in its absolute discretion. Subject to the foregoing, this Agreement will be binding upon and will vest to the benefit of the parties and their respective successors and assignors. 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 Technologies’ failure to act under this Agreement shall not indicate a waiver of rights under this Agreement. No waiver of any provision of this Agreement shall be valid unless made in writing and signed by Tiny Technologies. The failure of Tiny Technologies to require the performance of any term or obligation of this Agreement or the waiver by Tiny Technologies of any breach of this Agreement shall not prevent any subsequent enforcement of such term and shall not be deemed a waiver of any subsequent breach.

10.3 U.S. Export Restrictions

The 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 Subscription Services. By accepting the terms of this Agreement, Subscriber warrants and represents to Tiny Technologies 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 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 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 Agreement.

10.5 Notices

Tiny Technologies may provide Subscriber with notices, including those regarding changes to these terms of service, by e-mail or postings on the Service website. Subscriber may send a notice relating to this Agreement by delivery-assured service to the Chief Financial Officer, Tiny Technologies, 2100 Geng Road, Suite 210, Palo Alto, CA 94303, United States of America.

10.6 U.S. Government End Users

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

Version: 2017-09-29

Schedule A

Tiny Technologies Technical Support Conditions

A. PROFESSIONAL SUPPORT

1. TINY TECHNOLOGIES TECHNICAL SUPPORT SERVICE LEVELS

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

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

2. SERVICE HOURS

Tiny Technologies’ 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 Technologies technical support form on the Tiny Technologies website at: https://support.tiny.cloud/. Tiny Technologies’ response to support requests submitted by email will be delayed. After submission include the Tiny Technologies Technical Support case number that was advised by email in response to the initial reporting.

4. APPLICATION TO TINY TECHNOLOGIES PRODUCTS

Tiny Technologies technical support for any release of the licensed Software will end as specified:

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

B. ENTERPRISE SUPPORT

1. TINY TECHNOLOGIES TECHNICAL SUPPORT SERVICE LEVELS

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

Tiny Technologies Technical Support Service Level – Problem Category 1:
1. Response times within the service hours: 4 hours
2. Workaround times within the service hour: 24 hours
Tiny Technologies Technical Support Service Level – Problem Category 2:
1. Response times within the service hours: 8 hours
2. Workaround times within the service hour: 36 hours
Tiny Technologies 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

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.

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