PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING AND/OR USING SOFTWARE OR SERVICES FROM TILEDESK.
BY USING TILEDESK SOFTWARE OR SERVICES, USER ACCEPTS THIS AGREEMENT AND ACKNOWLEDGES IT HAS READ AND UNDERSTANDS THIS AGREEMENT. AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF USER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT USE TILEDESK SOFTWARE OR SERVICES.
This Tiledesk Terms and Conditions (the “Agreement”) is between Tiledesk SRL, an Italian SRL company, and the purchaser of Tiledesk software and services who accepts the terms of this Agreement (“Company”) in an Order Form or other purchase document. The effective date of this Agreement (“Effective Date”) is the earlier of the date that Company accepts this Agreement or first uses Tiledesk’s software or services.
1. SCOPE OF AGREEMENT AND DEFINITIONS
This Agreement sets forth the terms under which Tiledesk will provide Software and Services to Company.
2. LICENSE AND OWNERSHIP
2.1 Grant to Company. Subject to Company’s compliance with this Agreement, Tiledesk grants to Company, during the Subscription Period: (a) a non-exclusive, non-transferable, non-sublicensable license to use, copy, test, and modify the Software solely for Company’s own internal use and limited to the features designated in the Order Form, as applicable; (b) the rights in the third-party open source software provided with the Software, which rights are set forth in the applicable third-party licenses;
2.2 Restrictions. Company will not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to: (i) the Software, (ii) any modified version or derivative work of the Software created by the Company or for the Company; (b) remove or alter any copyright, trademark or proprietary notice in the Software; (c) transfer, use or export the Software in violation of any laws or regulations of any government or governmental agency.
2.3 Proprietary Rights. Tiledesk and its licensors will own all right, title, and interest to the Software, Services, technology, information, code or software provided to Company, including all copies, or any modifications to the Software.
3. FEES, PAYMENT, AND ADDITIONAL PURCHASES
3.1 Fees and Expenses. Fees for the Software and Services will be identified in an Order Form and are (a) due upon Company’s signing an Order Form or, for a renewal term, at the start of the renewal term, and (b) payable in accordance with Section 3.2. Fees are payable in Euros (€) unless otherwise stated in the applicable Order Form. Company will reimburse Tiledesk for all reasonable and pre-agreed expenses Tiledesk incurs in connection with the performance of professional services and/or training.
3.2 Invoices. Tiledesk will invoice Company for fees upon Company’s execution of each applicable Order Form, and up to thirty (30) days before the start of any renewal term. Company will pay fees and expenses, if any, no later than thirty (30) days from the date of each invoice. All payments are non-refundable except as otherwise provided in this Agreement. Tiledesk reserves the right to suspend or cancel performance of all or part of the Services and/or suspend Company’s license rights in the Software in the event Company is more than sixty (60) days past due on any undisputed invoice, and has failed to cure the payment deficiency within thirty (30) days of receiving written notice of the deficiency from Tiledesk.
3.3 Taxes. All fees are exclusive of Taxes.
3.4 Additional Purchases. Tiledesk and Company agree that Company and its Affiliates may acquire additional Software and Services from Tiledesk by entering into an Order Form that incorporates the terms and conditions of this Agreement, subject to minor adjustments as needed in a particular Order Form for Affiliates (for example, to address disparate tax and/or legal regimes in other geographic regions).
4. REPORTING AND RECORDS
4.1 Reporting. Company will notify Tiledesk promptly if it has exceeded the licensed features under this Agreement and the applicable Order Form. Tiledesk will invoice Company for the applicable fees and Company will pay such fees in accordance with Section Invoices.
5. OBLIGATIONS OF THE PARTIES
5.1 Changes to Work. All changes to the Services will be made through a written change order signed by both parties.
5.2 Assistance. Company will provide all reasonably necessary access, Company contacts, and other information and cooperation as necessary for Tiledesk to effectively provide the Support Services as provided in the Order Form.
6.1 Confidential Information
Definition. In connection with this Agreement, either party (the “Recipient”) may obtain confidential and proprietary information (“Confidential Information”) from the other (the “Discloser”). Confidential Information may include, without limitation, the terms of this Agreement and any Order Forms, data and information about end users, Business Partners, systems designs, pricing, cost data, financial information, business, sales, and marketing plans, products, product roadmaps, service programs, trade secrets, know-how, inventions, techniques, processes, programs, schematics, software, and data. Confidential Information includes information designated in writing as confidential, and any information a reasonable person would understand to be confidential or proprietary under the circumstances of its disclosure.
Exclusions. “Confidential Information” does not include information that: (i) has been independently developed by or for the Recipient without access or reference to, or use of, Confidential Information; (ii) is lawfully received free of restriction from another source having the right to furnish such information; (iii) is or becomes lawfully in the public domain other than through a breach of this Agreement; (iv) was lawfully known by the Recipient prior to disclosure; (v) Discloser agrees in writing is free of such restrictions; or (vi) is generally disclosed by the Discloser to third parties without a duty of confidentiality.
Duties With Respect To Confidential Information. At all times during and after the term of this Agreement, Recipient shall keep Discloser’s Confidential Information confidential using the same degree of care that it uses to protect its own Confidential Information, but not less than a reasonable degree of care, and shall not disclose Discloser’s Confidential Information to a third party without the Discloser’s written consent, or use the Confidential Information for purposes other than the performance of this Agreement. Where disclosure is required by law, such disclosure shall not constitute a breach of this Agreement provided Recipient gives Discloser reasonable advance notice to enable Discloser to seek appropriate protection of the Confidential Information.
7. REPRESENTATIONS AND WARRANTIES
7.1 General Representations and Warranties. Tiledesk represents and warrants that: (a) it will use reasonable skill and care in providing the Services; (b) the Services will be performed in a professional manner by qualified personnel; (c) it has the authority to enter into this Agreement with Company; and (d) Tiledesk’s has taken commercially reasonable measures to ensure the Software does not, at the time of delivery to Company, include malicious or hidden mechanisms or code designed to damage or corrupt the Software.
7.2 Disclaimer of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TILEDESK MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. TILEDESK DOES NOT GUARANTEE THAT THE USE OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR THAT TILEDESK WILL CORRECT ALL SOFTWARE ERRORS. FOR THE BREACH OF THE WARRANTIES SET FORTH IN SECTION 8.1, COMPANY’S EXCLUSIVE REMEDY AND TILEDESK’S ENTIRE LIABILITY FOR BREACH OF SECTION 8.1 WILL BE THE REPERFORMANCE OF DEFICIENT SERVICES, OR IF TILEDESK CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, COMPANY MAY TERMINATE THE RELEVANT SERVICES AND RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION. COMPANY’S EXCLUSIVE REMEDY AND TILEDESK’S ENTIRE LIABILITY FOR BREACH OF SECTION 8.1WILL BE TO UNDERTAKE COMMERCIALLY REASONABLE EFFORTS TO REMEDY OR SUPPLY A TEMPORARY FIX, OR MAKE AN EMERGENCY BYPASS, IF TILEDESK REPRODUCES THE PROBLEM IN A CURRENT, UNALTERED RELEASE OF THE SOFTWARE, OR IF TILEDESK CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, COMPANY MAY TERMINATE THE RELEVANT SUBSCRIPTION AND RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE REMAINING SUBSCRIPTION PERIOD AS OF THE EFFECTIVE DATE OF THE TERMINATION.
7.3 Third party cloud services. To work Tiledesk actually relies on a number of third parties cloud services. Tiledesk doesn’t respond of temporary malfunctiong of these services. This type of malfunction cannot cause the contract to be terminated. The Customer must accept that the malfunction of third party platforms such as Firebase for push notifications or real time data delivery, Apple APNs for push notifications deliveries etc. are not in control of our software and can’t be in charge of Tiledesk to manage these issues.
8 LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES
8.1 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR AN ORDER FORM, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON- COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
8.2 Limitation of Liability. FOR ALL EVENTS AND CIRCUMSTANCES, NEITHER PARTY’S (OR ITS AFFILIATES’) AGGREGATE AND CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE WILL EXCEED THE AMOUNTS PAID OR OWED TO TILEDESK BY COMPANY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR DEATH, PERSONAL INJURY, OR PROPERTY DAMAGE CAUSED BY NEGLIGENCE, OR FOR FRAUD. NOTHING IN THIS SECTION WILL LIMIT THE FEES OWED BY COMPANY UNDER THIS AGREEMENT FOR SOFTWARE OR SERVICES, OR FOR EXCEEDING THE SCOPE OF THE LICENSES GRANTED OR VIOLATING THE RESTRICTIONS IN SECTION LICENCE & OWNERSHIP.
9.1 Defense. If a third party initiates or threatens a legal action alleging that Company’s use of the Software directly infringes the third party’s patent, copyright, trademark or misappropriates the third party’s trade secret rights (“Third Party Rights”) (such action, a “Claim”), then Tiledesk will (a) promptly assume the defense of the Claim and (b) pay costs, damages and/or reasonable attorneys’ fees that are included in a final judgment against Company (without right of appeal) or in a settlement approved by Tiledesk that are attributable to Company’s use of the Software; provided that Company (i) is current in the payment of all applicable fees, or becomes current, prior to requesting indemnification, (ii) notifies Tiledesk in writing of the Claim promptly after receipt of the Claim, (iii) provides Tiledesk with the right to control the defense of the Claim with counsel of its choice, and to settle such Claim at Tiledesk’s sole discretion (unless the settlement requires payment by Company or requires Company to admit liability), and (iv) reasonably cooperates with Tiledesk in the defense of the Claim.
9.2 Injunctive Relief. If the Software becomes the subject of any actual or anticipated third party infringement claim, Tiledesk may, at its sole option and expense, (i) procure for Company the right to continue using the affected Software consistent with this Agreement, (ii) replace or modify the affected Software with functionally equivalent software that does not infringe, or, if either (i) or (ii) is not available on a basis that Tiledesk finds commercially feasible, (iii) terminate the Agreement or applicable Order Form and refund any prepaid fees for all unused portions of the Subscription Period.
9.2 Exclusions. Tiledesk will have no liability for any Claim based upon (a) use of non-current versions of the Software when Tiledesk has made newer, non-infringing versions available to the Company; (b) altered versions of the Software (unless the specific alteration was made by or for Tiledesk); (c) use, operation or combination of the applicable Software with non-Tiledesk programs, data, equipment or documentation if such infringement would have been avoided but for such use, operation or combination; (d) Tiledesk’s compliance with designs, specifications or instructions provided by Company where those designs, specifications or instructions cause the infringement; (e) use by Company after notice by Tiledesk to discontinue use of all or a portion of the Software; or (f) third party open source software. This section constitutes the entire liability of Tiledesk, and Company’s sole and exclusive remedy, with respect to any third party claims of infringement or misappropriation of intellectual property rights.
10.1 Notices. Notices under this Agreement must be in writing and delivered to the receiving party’s Chief Financial Officer, with a copy to its General Counsel, at the receiving party’s address listed in the Order Form. Notices will be deemed received when (1) delivered personally; or (2) upon confirmed delivery by a commercial express carrier.
10.2 Assignment. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld or delayed; provided, however, either party may, upon written notice and without the prior approval of the other party, (a) assign this Agreement to an Affiliate so long as the Affiliate has sufficient credit to satisfy its obligations under this Agreement and the scope of Service is not affected; and (b) assign this Agreement pursuant to a merger or a sale of all or substantially all of such party’s assets or stock.
10.3 Independent Contractor. Tiledesk is an independent contractor and nothing in this Agreement or related to Tiledesk’s performance of any Order Form is intended to create an employment or agency relationship between Company (or any Company personnel) and Tiledesk (or any Tiledesk personnel). Each party will be solely responsible for supervision, direction, control and payment of its personnel, including applicable taxes, deductions, other payments and benefits. Tiledesk may subcontract Services under an Order Form to third parties or Affiliates without the approval of Company; provided, however, that (a) subcontractors agree to protect Company Confidential Information, and (b) Tiledesk remains responsible to Company for the performance and actions of its subcontractors to the same extent as if it performed the services directly.
10.4 Compliance with Applicable Laws. Each party will comply with all applicable laws, including applicable export- control restrictions. In order for Tiledesk to provide Services to Company, it may be necessary for Tiledesk to share information with its Affiliates, Business Partners, and/or subcontractors, which may be located worldwide. In such event, Tiledesk will comply with Section CONFIDENTIALITY of this Agreement and with applicable data privacy laws governing the transfer of that information.
10.5 Marketing. Upon Tiledesk’s acceptance of a signed Order Form, Tiledesk may issue a press release announcing this Agreement, subject to Company’s prior review and approval as to content, and list Company’s name and logo in a list of customers to be used for marketing purposes.
10.6 Entire Agreement. Each Order Form (a) is deemed to incorporate this Agreement and all appendices and exhibits, unless otherwise expressly provided in that Order Form; (b) constitutes the exclusive terms and conditions with respect to the subject matter of that Order Form, notwithstanding any different or additional terms that may be contained in purchase orders or other purchasing documents used by Company ; and (c) represents the final, complete and exclusive statement of the agreement between the parties regarding that Order Form, and supersedes any prior or contemporaneous agreements (verbal or written) with respect to the subject matter of the Order Form. In the event of any conflict between this Agreement, any appendix, and any Order Form, this Agreement will take precedence unless otherwise expressly provided in the appendix or Order Form. The original and binding text of this Agreement is in English and the eventual translations is for reference purposes only. In the event of any conflict between the English original and the translation, the English version shall control.
10.7 Force Majeure. Force majeure events shall excuse the affected party (the “Non-Performing Party”) from its obligations under this Agreement so long as the event and its effects continue. Force majeure events include, without limitation, Acts of God, natural disasters, war, riot, network attacks, acts of terrorism, fire, explosion, accident, sabotage, strikes, inability to obtain power, fuel, material or labor, or acts of any government. As soon as feasible, the Non-Performing Party shall notify the other party of (a) its best reasonable assessment of the nature and duration of the force majeure event, and (b) the steps it is taking to mitigate its effects. If the force majeure event prevents performance for more than sixty (60) consecutive days, and the parties have not agreed upon a revised basis for performance, then either party may immediately terminate the Agreement upon written notice.
10.8 Severability. If any provision of this Agreement is ruled invalid or unenforceable, the provision shall be severable from this Agreement so that the remaining provisions are unaffected.
10.9 Waiver. No waiver of any rights under this Agreement will constitute a subsequent waiver unless otherwise stated in writing.
10.10 Dispute Resolution. Italian law shall govern all aspects of this Agreement. Any dispute arising from this Agreement shall be subject to the exclusive jurisdiction of court located in Lecce (Italy), without regard to their conflict-of- law principles or the United Nations Convention on Contracts for the International Sale of Goods.
10.11 Headings. All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
10.12 Amendment. Neither this Agreement nor any Order Form may be amended or modified except in a writing signed by the parties, which writing makes specific reference to this Agreement or the applicable Order Form.
“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party.
“Business Partners” means other organizations with which Tiledesk has entered into reseller agreements to sell, and support certain Software and Services.
“Community Versions” means the free, open-source community versions that Tiledesk makes available at no charge.
“Order Form” means a document or set of documents that describes Software and/or Services that Tiledesk will provide to Company, and may consist of (a) one or more signed order forms, statements of work, or similar transaction documents, or (b) an order placed by Company with a Business Partner.
“Services” means maintenance and support, training and professional services.
“Software” means Tiledesk software and other software programs branded by Tiledesk; provided, Software does not include third party open source software which may be provided therewith or Community Versions.
“Subscription” means access to the Software and certain support services during the Subscription Period.
“Subscription Period” means the defined period of time of the Subscription as set forth in an Order Form.
“Taxes” means any form of sales, use, value-added or other form of taxation, but excluding any taxes based on the net income of Tiledesk.