1. Customer’s Access and Use
These terms and conditions ("Terms of Service") govern Customer’s access to and use of the Services (as defined below) outlined in any Order Form agreed between Tines and Customer. The agreement between the parties includes and incorporates any Order Forms, the data processing agreement ("DPA") (at tines.com/dpa) as well as these Terms of Service, and its exhibits (the “Agreement”). For the avoidance of doubt, any terms and conditions attached to a purchase order or any Customer documentation shall not apply to the provision of these Services and this Agreement shall always take precedence over such terms and conditions. Notwithstanding the foregoing or anything to the contrary contained herein, the terms of any Order Form(s) entered between the parties shall take precedence over the Agreement in respect of any net day payment terms or billing frequency agreed.
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
Company hereby grants Customer a limited, non-exclusive, non-transferable , revocable, non-assignable and non-sublicensable right to access and use the software specified in an applicable Order Form as well as any support services (“Services”) during the Term, for use by Customer and Customer’s employees, consultants, contractors, and agents who are authorised by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement (“Authorised Users”) in accordance with this Agreement and the terms and conditions set forth in such separate executed document(s) under which Customer subscribes to or purchases access to the Services (each an “Order Form”). Each Order Form is incorporated by this reference into, and governed by, this Agreement.
Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Company.
Customer shall be responsible for the acts and omissions of its Authorised Users who access the Services, as though they were the acts and omissions of Customer and agrees to indemnify Company and its Affiliates and subcontractors against any claims, costs, losses, damages or liability arising from the acts or omissions of its Authorised Users which constitute a material breach of the terms of this Agreement.
2. Restrictions and Responsibilities
Customer's use of and access to the Services is strictly for legitimate, good faith commercial purposes and not for fraudulent, deceitful or competitive intelligence purposes.
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or Software in any form or media or by any means (except to the extent expressly permitted by Company or authorised within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Customer shall not during the course of its use of the Services access, store, distribute or transmit any viruses, or any material that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; or (ii) facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence; or (iii) is discriminatory or otherwise illegal or causes damage or injury to any person or property; (iv) contains any unsolicited or unauthorised advertising, promotional or marketing materials; or (v) encourages conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable law or regulation.
Customer shall (i) comply with all applicable laws and regulations with respect to its activities under this Agreement including Applicable Data Protection Legislation; (ii) obtain and shall maintain all necessary licenses, consents, and permissions necessary on its part for the Company, its third party providers and subcontractors to perform their respective obligations under this Agreement; and (iii) ensure that its network and systems comply with any specifications provided by Company and will be solely responsible for procuring and maintaining its network connections and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links.
"Applicable Data Protection Legislation" means any laws or regulations applicable to the processing of Customer Personal Data including; without limitation, the Data Protection Acts of Ireland 1988 to 2018 and the General Data Protection Regulation (EU) 2016/679 (the "GDPR"), the United Kingdom Data Protection Act 2018 and the California Consumer Privacy Act 2018 (in each case, as amended from time to time and including any regulations made thereunder).
Without prejudice to Company’s other rights in law or equity, Company reserves the right, without liability to Customer, to suspend or disable Customer’s or any Authorised Users' access to the Services for any reason including but not limited to any actual or suspected fraudulent or deceitful use of, or access to, the Services by Customer or any Authorised Users or, where Customer or any Authorised Users' use of or access to the Services is or is suspected to be for competitive intelligence purposes or otherwise than for legitimate, good faith commercial purposes. Where Tines suspends or disables Customer's or any of its Authorised Users' access to the Service, and Customer or its Authorised Users' continue to be in breach of this clause 2, Tines has the right to terminate the Agreement with immediate notice. Tines is not liable to Customer, its Authorised Users or any third-party for any modification, price change, suspension or discontinuance of the Services.
3. Confidentiality; Proprietary Rights
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may supply certain proprietary and confidential information, whether in a tangible form and labeled “confidential” or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services and Software. Proprietary Information of Customer includes, but is not limited to, information relating to Customer’s security policies, business procedures, and non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”).
The Receiving Party agrees: (i) to protect Proprietary Information with the same degree of care, but in no event less than a reasonable standard of care, that they use to protect their own Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
Company shall own and retain all right, title and interest in and to (a) the Services and Software; (b) all improvements, enhancements or modifications to the Software and Services which are carried out under or in connection with this Agreement, whether by Company alone or jointly with Customer, and whether based on ideas or suggestions from Customer; (c) any software, applications, inventions or other technology developed in connection with any implementation services as set out in an Order Form (“Implementation Services”) or support, (d) all workflows that the Customer creates using the Services and Software (the "Stories"), and (e) all intellectual property rights related to any of the foregoing. Except as expressly stated herein, this Agreement does not grant Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Services.
4. Fees
Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). For uplifts on a renewal Order Form, Fees may be increased at renewal over the prior year's pricing exclusive of any changes in quantity licensed and/or level of service. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company within the net payment days as set out in the Order Form between Customer and Company after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. If Company has not received payment of fees within seven (7) days after the due date, and without prejudice to any of the Company’s other rights and remedies, Company may without liability to Customer suspend Customer’s access and disable passwords and accounts to all or part of the Services and Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
All amounts stated or referred to in this Agreement are non-cancellable and non-refundable unless stated elsewhere in the Agreement and unless otherwise indicated on the Order Form, are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to Company’s invoice(s) at the appropriate rate. Customer will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement, other than U.S. taxes based on Company’s net income. Customer shall pay all fees in full without set off.
5. Term and Termination
The term of this Agreement shall begin on the subscription start date as set out in the Order Form and continue until this Agreement is (i) either terminated by one of the parties in accordance with this Agreement, or (ii) all Order Form(s) expire and are not renewed by the parties (the "Term"). The Agreement shall run for the Initial Service Term as specified in the Order Form, and shall be automatically renewed (unless agreed otherwise in the Order Form) for additional periods of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term. Termination of this Agreement terminates all Order Forms then in effect, but termination of an Order Form does not terminate this Agreement or any other Order Form.
In addition to any other remedies it may have, either party may also terminate this Agreement; (i) upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement and has not remedied such breach where the breach is curable following written notice thereof; (ii) immediately with notice if the other party materially breaches the Agreement and the breach is not curable; or (iii) if the other party becomes insolvent or unable to pay its debts when due (as defined by applicable law) or has a liquidator, receiver or manager appointed to it, or a winding-up order instituted against it. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
On termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate and all right to access the Services shall immediately terminate. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. Warranty and Disclaimer
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimises errors and interruptions in the Services, and shall provide all Services in a professional and workmanlike manner with due care, skill, and diligence. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
Except as expressly set forth in this section, the Services and Implementation Services are provided “as is” and Company disclaims other warranties, express or implied, including, but not limited to the implied warranties of merchantability and fitness for a particular purpose. Customer is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Application Data Protection Legislation. Company reserves the right to introduce new or enhanced features and functionalities to the Services.
7. Limitation of Liability
Company will not have any liability to Customer or any Authorised Users for any loss of profits, loss of business, loss of revenue, for error or interruption of use or for loss or inaccuracy or corruption of data, reputational damage, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not Company has been advised of the possibility of such.
To the maximum extent permitted by applicable law, Company’s and its affiliates total aggregate liability arising out of or related to this Agreement or the Services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the fees paid by Customer in the twelve months preceding the act that gave rise to the liability.
8. Insurance
Company will maintain, at its sole expense, the following insurance and minimum limits in aggregate: (i) Professional liability with a limit of €5,000,000 EUR; (ii) Network security & privacy liability insurance with a limit of €5,000,000 EUR (iii) Cyber incident response with a limit of €5,000,000 EUR; (iv) System damage and business interruption with a limit of €5,000,000 EUR (v) Reputation and brand protection with a limit of €100,000 EUR, (vi) Court attendance costs with a limit of €100,000 EUR. Upon Customer’s request, Company shall provide Customer with a certificate of insurance evidencing such insurance coverages.
9. Anti-Corruption
With respect to Services provided under these terms, Customer and Company personnel shall comply with all applicable national and international anti-corruption laws, such as the Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, et seq. and the United Kingdom Bribery Act 2010.
10. Non-Publicity
Neither party may publicly announce this Agreement except with the other party's prior written consent or as required by applicable law. Company may only use the Customer's business name and trademarks as part of its marketing and promotional materials in strict accordance with any logo, branding or trademark guidelines communicated to the Company by or on behalf of Customer. Company will cease this use at the Customer's written request. Customer agrees that if a price discount is indicated in an Order Form for Customer participating in Tines's Customer reference program, the Order Form will outline the extent of the marketing activities agreed on by the parties and what Customer has consented to in the form of a marketing reference agreement. Where the Order Form specifically states that marketing activities will be performed by the Customer on behalf of Company, Company grants Customer a limited, non-exclusive, non-transferable, royalty-free license to use and display its name, trademarks, service marks, copyrights and logos for signage and other purposes solely related to such event. Customer will perform any such marketing activities on behalf of Company in strict accordance with any logo, branding, or trademark guidelines of Company.
11. Force Majeure
Company shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic, provided that Customer is notified of such an event and its expected duration. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party.
12. Dispute Resolution
Subject to clause 12.4 below, in the event of any dispute, difference or question arising out of, or in connection with, this Agreement or its formation (a dispute), the party claiming that a dispute has arisen must give written notice to the other party setting out full particulars of the dispute and representatives of Company and Customer shall (a) each use best efforts to resolve the dispute through good faith negotiations and informal dispute resolution techniques; and (b) continue to perform their obligations under this Agreement as far as possible as if the dispute had not arisen, pending final settlement of the dispute.
If a dispute cannot be resolved pursuant to the provisions of clause 12.1 within fourteen (14) days, that dispute shall be referred to a senior representative of Company and of Customer for resolution.
If a dispute cannot be resolved by the Parties' respective senior representative pursuant to clause 12.2 within fourteen (14) days, then either party may resort to such other methods of dispute resolution as may be available to them (including, for the avoidance of doubt, litigation).
Clauses 12.1 – 12.3 (inclusive) shall be without prejudice to the rights of termination stated in this Agreement and in addition shall not prevent Company or Customer from applying for injunctive relief in the case of: (i) breach or threatened breach of confidentiality; (ii) infringement or threatened infringement of its Intellectual Property rights.
13. Miscellaneous
No forbearance, delay or granting of time by either party in or before enforcing the Agreement shall prejudice its rights.
If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
This Agreement (which includes all Order Forms and any exhibits or documents), and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
We reserve the right in our sole discretion and at any time to update and modify these Terms of Service. Customer can review the most current version of the Terms of Service at any time at this page. It is your responsibility to check our website periodically for changes.
Either party may assign all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganisation in which Company is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect.
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorise either party to act as agent for the other.
Any notice to be given by either party for the purposes of the Agreement shall be sent by mail/email to the contact party whose details are set out in the Order Form. A notice delivered (i) by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice shall be deemed to have been received at the time at which it would have been delivered in the normal course of post and (ii) by email shall be deemed to have been received at 9.00am on the next working day (being a day other than a Saturday, Sunday or bank holiday when banks in Ireland are open for business) after transmission.
The following Clauses shall survive the termination or expiration of this Agreement: clause 2, 3, 5, 6, 7, 10, 12 and this clause 13.
Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Tines may obtain and aggregate technical and other data about Customer’s use of the Platform, and Tines may use such data to analyse, improve, support and operate the Platform and otherwise for any business purposes during and after the term of this Agreement, including without limitation to generate reports for distribution to and consumption by Customer. This Agreement and any disputes or claims arising out of or in connection with it are governed by, and construed in accordance with the laws of the Republic of Ireland. The parties irrevocably agree that the courts of the Republic of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
EXHIBIT A
Service Level Terms
This Exhibit A will only apply where the Customer access and uses the Services run and hosted by Company and is considered to be a cloud-based Customer.
During the applicable Term, Company will use commercially reasonable efforts to make the Services available with a monthly uptime percentage of 99.9% ("Uptime Guarantee"). If the Uptime Guarantee is not achieved in one calendar month, the Customer will be eligible upon request to receive a Service Credit (as defined below) for the month affected by unavailability as set forth in the table below. This Exhibit A states the Customer's sole and exclusive remedy, and Company's entire liability, for any failure by Company to meet the Uptime Guarantee.
The Uptime Guarantee does not apply to Service interruptions caused by:
(a) Scheduled maintenance for which Company will use commercially reasonable efforts to schedule during non-business hours
(b) Emergency maintenance
(c) Suspension of access to the Services in accordance with the Terms of Service
(d) Acts or omissions by the Customer or any third party
(e) The Customer's equipment, software or technology
(f) Causes beyond Company's reasonable control (Force Majeure)
(g) Connectivity by the Customer to or from a third party system outside the control of Company
If Customer requests maintenance during these hours, any Uptime Guarantee or downtime calculation will exclude periods affected by such maintenance.
For each period of downtime lasting 30 (thirty) consecutive minutes or more in one calendar month, Company will credit Customer ("Service Credit") an amount that is equal to 5% of the Fees paid by Customer pro rated to the calendar month in which the downtime occurred such that, for example, for 30 minutes of downtime in one calendar month, Customer will be credited an amount that is equal to 5% (five per cent) of 1/12th (one twelfth) of the annual Fees paid during the applicable Term and for 60 minutes of downtime in one calendar month, Customer will receive an amount that is equal to 10% (ten per cent) of 1/12th (one twelfth) of the annual Fees paid during the applicable Term.
Downtime shall begin to accrue when unscheduled downtime takes place and continues until the availability of the Services is restored. In order to receive a Service Credit, Customer must claim the Service Credit in writing by email to finance@tines.io within thirty (30) days after the end of the calendar month for which the Service Credit is claimed. Customer can monitor service run-time at https://status.tines.com. If Tines confirms the validity of the request, Service Credits will be applied to the Customer's next invoice. Service Credits do not entitle the Customer to a refund or other payments from Tines. Failure to claim the Service Credit in accordance with this paragraph will constitute a waiver of all of the Customer's rights and remedies with respect to such Uptime Guarantee failure. Service Credits may not be redeemed for cash and shall not be cumulative beyond a total of Service Credits for 1/12th (one twelfth) of the annual Fees paid during the applicable Term. The provisions of this paragraph constitute the Customer's sole and exclusive remedy, and Tines sole and exclusive liability, with respect to failures of Uptime Guarantees and this Exhibit A.
Company's blocking of data communications or other service in accordance with its information security policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.