Last Updated: December 1, 2022
THIS AGREEMENT IS BY AND BETWEEN YOU AND THE TILIA ENTITY LISTED ON THE ORDER DOCUMENT (“TILIA”). IT CONSISTS OF THE TERMS AND CONDITIONS SET FORTH BELOW AND THE ORDER DOCUMENT. IT IS EFFECTIVE BETWEEN YOU AND TILIA AS OF THE DATE ON WHICH YOU ACCEPT THIS AGREEMENT (THE “EFFECTIVE DATE”).
BY YOUR USE OF THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS CONTENTS. YOU ALSO AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN TILIA AND YOU AND SUPERSEDES ALL PRIOR REPRESENTATIONS OR AGREEMENTS, ORAL OR WRITTEN, BETWEEN TILIA AND YOU REGARDING THE SUBJECT MATTER OF THIS AGREEMENT.
This Agreement also covers software owned by third parties. If no license or specific terms and conditions are presented for acceptance the first time that third party software is invoked, then the use of that third party software will be governed by this Agreement.
If You are not willing to comply with the terms and conditions of this Agreement, do not use the Software.
“Affiliate” means a company controlled by, controlling or under common control with a party to this Agreement.
“Agreement” means this End User License Agreement.
“Authorized Users”, means individuals or processes assigned by You to use the Software, which may include, as far as individuals are concerned, Your officers, employees and/or consultants and agents performing services for You or on Your behalf, and/or officers or employees of third parties involved in the performance of Your internal business purposes (e.g. approving customer workflows). Authorized Users may be assigned and changed using only the license administration tools provided in combination with or as part of the Software licensed, provided that access credentials are not shared amongst users.
“Object Code” means code in a machine readable form that is not convenient to human understanding of the program logic, and that can be executed by a computer using the appropriate operating system without compilation or interpretation.
“Open Source License Terms” means any terms or conditions which meet the definition of Open Source found at http://www.opensource.org/docs/osd.
“Order Document” means a quotation, order confirmation and any other document(s) in writing or electronic format, provided to You by Tilia which sets forth the Software licensed to You under this Agreement and the Usage Restrictions applicable to that Software, if any.
“Software” means the Object Code form of software and related manuals and documentation (in hard copy only), including Tilia software and other third party software, licensed under this Agreement.
“Usage Restrictions” are any restrictions in functionality or use of the Software, as stated in the documentation or Order Document. “You” means the customer entity identified in the Order document.
“Your Data” means any electronic data and information submitted by You to the Software.
2. Grant of License
Tilia grants You, and You accept from Tilia, a non-exclusive, non-transferrable license (except as otherwise set forth herein) to use the Software solely for Your internal business purposes. The duration of such license shall be controlled by the Order Document(s), and shall either be perpetual or a subscription based license. Your continued use of the Software is subject to the timely payment of fees as they become due.
You grant Tilia and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services or products any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Authorized Users relating to the operation of Tilia’s or its Affiliates’ services and/or products.
3. Limitations on Use
The following terms shall apply based on the type of license that you purchase:
a) The use of the Software is limited to the number of licenses procured pursuant to an Order Document.
b) You will not sell, re-license, sublicense, transfer (to a different company or location), assign, lease or rent the Software. You may not modify or translate the Software. You will not reverse engineer, decompile, or disassemble the Software or otherwise attempt to discover the source code of the Software except to the limited extent expressly allowed by non-waivable provisions of applicable law. You will not tamper with, bypass or alter the license management routines included in the Software or use the Software in violation of any Usage Restrictions and/or the license granted. If You receive an upgrade or update of the Software, You may continue to use the Software, or the upgraded or updated version of the Software, but not both. Unless otherwise expressly permitted in writing, You may not use, or permit others to use, the Software for or on behalf of any third party, to run an outsourcing business, or for any purpose other than Your internal business purposes. Further application specific restrictions may apply per the Software documentation.
d) Upon reasonable belief that You have violated this Agreement, with prior written notice from Tilia, You shall provide Tilia access to any information reasonably necessary for Tilia to verify your compliance with the applicable provisions of this Agreement.
4. Back-up Software
You may make one complete copy of the Software solely for back-up purposes and use in the event the original copy of the Software is unavailable.
5. Ownership and Copyright
a) Ownership. Tilia and its third party licensors retain title and ownership of the Software and all subsequent updates, derivative works to and copies of the Software, including, without limitation, any Software or portions thereof that are modified, altered and/or merged with any data sets by You. Nothing in this Agreement shall be construed as, or is meant to transfer ownership of the Software. All rights, title and interest to any derivative works created by You or by a third party on Your behalf are hereby assigned to Tilia as of their creation, and shall remain the sole and exclusive property of Tilia. You shall retain a license to use any derivative works created by You for so long as You retain a license to use the Software associated with such derivate works.
b) Marks. You grant Tilia a non-exclusive, non-sublicensable right, during the Term, to use any of Your trademark, service mark or tradename contained in Your Data to perform under this Agreement, and to identify You in Tilia’s customer list and other marketing and promotional materials and communications. Tilia shall comply with Your written guidelines for trademark usage provided reasonably in advance.
a) Fees and Expenses. Fees, minimum terms, renewal terms, early termination liability (if any) shall be identified in applicable the Order Document.
b) Invoice and Payment. You shall pay all fees specified in an invoice upon receipt, and shall be deemed delinquent if not paid pursuant to the terms set forth in the Order Document. Except as otherwise provided in an Order Document; (i) fees are based on the Software purchased, not on actual usage; and (ii) payment obligations are non-cancellable and fees paid are non-refundable. If this Agreement or an Order Document is terminated for any reason, You shall not be entitled to a refund or credit for fees paid.
c) Overdue Payments. Tilia may charge You overdue payment charges on the unpaid balance from the original due date at the rate of the lesser of one and one-half percent (1.5%) per month, or the maximum interest allowed by law.
d) Invoice Disputes. Any invoice must be disputed within thirty (30) days of delivery. If within that period You deliver written notice disputing an invoiced amount and describing the basis for the dispute with particularity, the parties shall make a good faith effort to confer and resolve the dispute within thirty (30) days of Your notice.
e) Fee Collection. Notwithstanding any of Tilia’s rights herein, if You fail to pay applicable fees under an Order Document, Tilia shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then-current term of the applicable Order Document are immediately due and owing. You shall be responsible for the payment of all reasonable collection expenses incurred by Tilia.
7. Warranties and Limitation of Liability
Tilia warrants for a period of 90 calendar days after delivery (the “Warranty Period”) that the Software (excluding any third party software) will perform substantially in accordance with the accompanying user documentation provided that the Software is used under normal operating and maintenance conditions, as directed in the documentation, and in compliance with this Agreement. The warranties set forth in this Agreement will not apply if defects arise out of accident, neglect, misuse, failure of utilities, equipment failures, causes beyond Tilia’s control, or use other than ordinary use for which the Software is intended. This warranty does not cover any software, hardware or materials not sold by Tilia, or any combination of Tilia Software with the same. Any modifications to the Software by any persons other than Tilia will void the warranty described in this Agreement and cause an event of default under this Agreement.
In the event of a claim during the Warranty Period, Tilia’s sole obligation will be to cause the Software to substantially conform to its documentation (to the extent technically and reasonably possible and on the condition that the error is reproducible) by amending or updating the Software or supplying an alternative version of the product in which it is embedded. In the event that Tilia is unable to bring the Software into compliance with the warranty, You may return the Software to Tilia and You will be entitled to recover, as Your sole and exclusive remedy, the fees paid for that non-complying Software, depreciated in accordance with standard accountancy practices.
THIRD PARTY SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITHOUT CONDITION OR WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EITHER EXPRESS OR IMPLIED. THE WARRANTIES AND TILIA’S LIABILITY DESCRIBED IN THIS AGREEMENT ARE TILIA’S EXCLUSIVE OBLIGATIONS AND YOUR EXCLUSIVE REMEDIES. THEY ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. NO OTHER WARRANTIES, REMEDIES, OBLIGATIONS, LIABILITIES, RIGHTS, OR CLAIMS, WHETHER ARISING IN TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE ARE MADE OR GIVEN BY TILIA, INCLUDING WITHOUT LIMITATION, ANY WARRANTY THE SOFTWARE IS ERROR OR BUG FREE. NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, IS MADE EXCEPT AS SET FORTH IN THIS AGREEMENT. TILIA EXPRESSLY DISCLAIMS (AND YOU ACKNOWLEDGE THAT IT DISCLAIMS) ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL TILIA, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, SUCH AS BUT NOT LIMITED TO ANY LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, OR ANY OTHER ECONOMICAL ADVANTAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE PROCURED UNDER THIS AGREEMENT.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL TILIA’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SOFTWARE PROCURED UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY AND FOR ALL CLAIMS IN AGGREGATE, EXCEED THE PRICE YOU PAID TO TILIA FOR THE SOFTWARE GIVING RISE TO THE CLAIM.
8. CONFIDENTIALITY AND PROTECTION OF YOUR DATA
a) Definition of Confidential Information. Your Confidential Information includes Your Data, Confidential Information of Tilia includes the Software and the terms and conditions of this Agreement (including pricing), however, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the party disclosing Confidential Information (“Disclosing Party“), (ii) was known to the party receiving Confidential Information (“Receiving Party“) prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth herein apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Tilia
b) Confidentiality The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to not use any Disclosing Party Confidential Information for any purpose outside the scope of this Agreement and except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who have a need to know and who are under similar confidentiality obligations as those herein. If the Receiving Party is required by law or court order to disclose Confidential Information, then Receiving party shall, to the extent legally permitted, provide the Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.
c) Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. Upon termination of this Agreement, both parties shall either return or destroy any Confidential Information in its
d) Your Data. To the extent that any of Your Data comprises personal data (as defined in Directive 95/46/EC of the European Parliament and of the Council or any successor directive or regulation), as between You and Tilia, You are the data controller, and Tilia is the data processor. You are solely responsible for the accuracy, content, and legality of all Your Data and warrant that You have and will maintain sufficient rights in Your Data to grant the rights to Tilia under this Agreement and that Your Data will not violate the rights of any third party. You grant Tilia authorization to view, store, copy, and delete or otherwise process Your Data as part of Tilia’s standard performance of the Software to prevent or address service or technical problems with the Services, or as may be required by law and You consent and agree to the processing of Your Data by Tilia for such purpose at or from geographical locations within or outside of the European Economic Area (including but not limited to the United States of America).
e) Protection of Your Data. Tilia will maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data, as described in the Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Your Data (other than by You or Your Authorized Users). The terms of the Data Processing Addendum at https://tilialabs.com/dpa/(“DPA”) posted as of the Effective Date are hereby incorporated by reference.
9. Export & Tax
You may not export or re-export the Software in violation of any applicable laws or regulations including but not limited to those of the United States of America, the European Union and the United Kingdom. In addition, if the Software is identified as export controlled items under the export laws of the United States of America, the European Union or the United Kingdom, You represent and warrant that You are not a citizen, or otherwise located within, an embargoed nation and that You are not otherwise prohibited under applicable export laws from receiving or using the Software. All rights to use the Software are granted on the condition that those rights are forfeited if You fail to comply with the terms of this Agreement. In case of a transfer of licenses You agree to be responsible for the payment of all taxes and duties (including but not limited to VAT, sales taxes, import taxes, etc.) applicable or levied as a result of the import of the Software or of the transferred licenses into the country or geographical area where the transferred licenses will be used, and agree to indemnify and hold harmless Tilia, its officers, agents and employees (the “Indemnitees”) from and for any claims, suits and proceedings and any costs, fines and expenses awarded against or incurred by the Indemnitees as a result of Your failure to pay such taxes or duties.
10. Term and Termination
a) License commencement A license granted hereunder is effective from the earlier of the date provided in the corresponding Order Document or date of activation of the Software.
b) Perpetual licenses. Unless otherwise defined by the Order Document, the Software is licensed on a perpetual basis.
c) Subscription based licenses are granted for the initial period defined by the Order Document (the “Initial Term”). Following the Initial Term, if so indicated by the Order Document, Your license shall automatically renew for consecutive one year periods, subject to You having paid all fees due (“Renewal Terms”). Renewal Terms of subscription based licenses may be subject to fee increases.
d) Cancellation, termination and suspension of the license. For perpetual licenses, You may terminate such license at any time upon written notice to For subscription based licenses, either party must give notice of non-renewal at least thirty (30) days prior to the expiration of the then current Term. Without prejudice to any other remedy available to Tilia:
(i) In case You fail to make a payment when due, Tilia may, through technological means or by providing You with a corresponding notification, forthwith suspend Your license and prevent further use of the Software;
(ii) This Agreement may be terminated “for Cause” as follows: This Agreement will terminate automatically if a party fails to cure a breach of any of its obligations within thirty (30) days from receipt of a written notice from the other party stating such breach. If the breach is not capable of being remedied, termination will be effective upon receipt of the notification; Tilia further reserves the right to terminate this agreement upon written notice if You fail to make any payment when due. If You fails to make payment of any fees due under the Agreement, You shall be in material breach of the Agreement.
e) Effect of Termination. Upon the termination of this license, You will cease all use of the Software and return or destroy all copies, full or partial, of the Software, as will be instructed to You, on a case-by-case basis, by Tilia may, in its sole discretion, provide replacement Software if the original Software is lost, stolen, or corrupted. You agree to only use the replacement Software or, if found or rendered usable, the original Software. You will not otherwise dispose of the replacement or original Software.
f) Post-Termination Assistance. Tilia may provide post-termination assistance services as further agreed in writing, including the fees payable for such assistance.
11. Open Source License Terms
If any part of the Software is subject to any Open Source License Terms, as indicated by separate Open Source License Terms provided with the Software, the use and the license of that part of the Software will be subject to those Open Source License Terms. In the event of any contradiction or uncertainty between the license terms contained in this Agreement and the Open Source License Terms with respect to the portions of the Software governed by Open Source License Terms, the applicable Open Source License Terms will prevail.
a) Order of Precedence. In case of any conflict between this Agreement the terms set forth in any Order Document, the latter will control. Any modifications to an Order Document must be in writing and signed by both parties.
b) Assignment. You may not assign or otherwise transfer any of its rights, interests or obligations under this Agreement or any Order Document without Tilia’s prior written consent. Any assignment contrary to this subsection will be null and void. Tilia may assign any of its rights and obligations under this Agreement or any Order Document to any existing or future Affiliate and/or to any third party involved in a merger or acquisition or the sale of assets. Tilia may subcontract the performance of any of its obligations under this Agreement or an Order Document to any existing or future Affiliate and/or to any third party subcontractor, provided that Tilia remains responsible for the performance by the subcontractor of such obligations in accordance with the terms of the Order Document.
c) Non-Waiver of Rights. The failure of either party to strictly enforce any of the terms or conditions of this Agreement will not be considered a waiver of any right therein. If any term is declared invalid or unenforceable to any extent, the remainder of the terms or conditions will not be affected thereby, and the ineffective, invalid, or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the commercial intention of the provision in question.
d) Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and sent to the contacts and addresses specified in the Order Document. Notices shall be deemed to have been given upon: (i) personal delivery, (ii) confirmed delivery by an overnight carrier, (iii) the second business day after mailing, or (iv) except for notices of breach or termination (“Legal Notices”), the first business day after sending by email and confirmation of the emails receipt by the other party. Legal Notices to Tilia shall be provided in writing and addressed to the attention of its Chief Counsel. Either party my change designated addresses or contacts for receipt of notice upon prior written notice to the other party.
e) The termination or expiration of this Agreement or any Order Document will not affect the survival and continuing validity of any provision which expressly or by implication is intended to continue in force after such termination or expiration.
f) Force Majeure. Neither party will be responsible for, nor be in default of this Agreement due to any delays or failure of performance (except payment obligations) resulting from acts or causes beyond its reasonable control, including without limitation acts of God, acts of war, third-party labor strikes, power failures, floods, earthquakes, other natural disasters, or other similar events (“Force Majeure Event”). In the event that either party is unable to perform any of its obligations hereunder because of a Force Majeure Event, the party who has been so affected will promptly give notice to the other and will exercise all reasonable efforts to resume performance.
g) Full Knowledge. All Order Documents between the parties (including this Agreement) are entered into by the parties knowingly and in full knowledge of the facts. The parties explicitly agree that the terms agreed as part of the Order Documents entered into, reflect a balanced legal relationship between them within the scope of the general economic purpose, the common commercial practice and the specific Software to which these contracts relate
h) Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the country, state or other geographic designation where Tilia is located, without reference to its conflicts of laws The United Nations Convention on the International Sale of Goods will not apply. Each party hereby consents that any litigation between the parties relating to this Agreement, breach, termination, or invalidity thereof, shall be conducted in the courts of the country, state or other geographic designation where Tilia is located, and the parties irrevocably accept and submit to the exclusive jurisdiction of such courts. Notwithstanding the previous, Tilia shall also be entitled to bring any actions against You in the courts of the jurisdiction or place where You are established, domiciled or operating, if the action concerns (1) the collection of a debt, money owed or nonpayment of invoices, or the return of property, or (2) the enforcement of Tilia’s intellectual property rights.