The parties, namely the Customer as identified in an Order Form or SOW, referred to as the "Customer," and tippingharry, referred to as the "Supplier," agree to the following General Terms and Conditions (GTCs). Both parties may be individually referred to as a "Party" and collectively as the "Parties."
Within this Agreement, the terms below carry the definitions provided:
a. Agreement: This includes these General Terms and Conditions (GTCs), along with any attachments, as incorporated into a fully executed Order Form or SOW. The GTCs can be updated as described in Section 15(g), along with any additional terms from an Order Form, SOW, or addenda that refer to the GTCs.
b. Authorized User: Individuals or entities authorized by the Customer to access and use tippingharry' Cloud Services, including third parties as outlined in Section 2(a)(ii). This access is subject to the Customer's restrictions and responsibilities under the Agreement. Individuals ineligible per the Agreement's terms cannot be Authorized Users.
c. Cloud Services: These are on-demand, subscription-based solutions or technology services provided by tippingharry, hosted, supported, and operated by us, as outlined in an Order Form. This also includes necessary documentation, Embedded Third-Party Content, and Supplier Materials for using the Cloud Services, except for Third-Party Content.
d. Corporate Affiliate: Any entity directly or indirectly connected through ownership, control, or common management with tippingharry or the Customer.
e. Customer Data: Information, data, and content provided by the Customer or Authorized Users to tippingharry through the Cloud Services. This excludes Supplier Materials and encompasses data created specifically for the Customer through Cloud Service processing.
f. Documentation: Technical and functional materials provided by tippingharry about its Products, such as manuals, guides, release notes, and help files.
g. IP Rights: Rights under patent, copyright, trademark, trade secret, and other intellectual property laws worldwide.
h. Marks: Logos, tradenames, trademarks, service marks, and trade dress of either the Customer or tippingharry, whether registered or not.
i. Offer: An agreement where the Customer commits to paying tippingharry for specific advertising performance results, promoting particular applications, products, services, networks, or advertisements.
j. Order Form: Refers to a document, such as an order, quotation, or online form, mutually agreed upon by the parties. It incorporates these GTCs and outlines the Products to be provided under the Agreement. This document may also include a "Pricing Statement" that was previously agreed upon and remains active.
k. Partner: Refers to a third party engaged by the Customer, such as ad networks, publishers, advertisers, affiliates, analytics providers, or data providers, to promote an Offer on the Customer's behalf.
l. Personnel: Includes employees, directors, officers, or subcontractors of a Party or its Corporate Affiliate.
m. Pro Rata Refund: Signifies a refund of pre-paid amounts by the Customer to the Supplier for any Product or related costs that will not be provided or utilized by the Supplier by the refund date. This refund is calculated based on the remaining subscription months for subscription-based Fees, the undelivered portion for fixed Fees, and the unincurred costs for expenses.
n. Professional Services: Encompass implementation, integration, configuration, training, and other professional services provided by the Supplier, as specified in an Order Form or SOW.
o. Products: Collectively refer to Cloud Services, Professional Services, and Support Services.
p. Services: Collectively refer to Professional Services and Support Services.
q. Supplier Materials: Include all information, data, documents, materials, content, processes, descriptions, plans, reports, devices, software, websites, technologies, and innovations developed, provided, or utilized by the Supplier or Supplier Personnel in relation to the Products or integrated into them. This includes Usage Data and Deliverables but excludes Customer Data and Third-Party Content.
r. Support Services: Refer to the Supplier's regular and premium customer support and maintenance services provided to the Customer for its Products under the Agreement.
s. Statement of Work (SOW): A written document agreed upon by the parties, incorporating these GTCs, and outlining the Professional Services to be performed by the Supplier under the Agreement.
t. Territory: Refers to the authorized geographical area where the Customer is permitted to use the Products, as specified in an Order Form. If not specified, Territory includes all countries not excluded by Section 15(a) of these GTCs, subject to the Supplier's right to restrict usage in designated ineligible countries.
u. Usage Data: Comprises data generated by the Supplier or its Products from Customer usage, such as end user profiles, visits, sessions, impressions, click-throughs, clickstreams, and related statistical or analytical information. This data is de-identified to protect individual identities.
v. Usage Metric: Defines the standard measurement and quantity used to determine permitted use and calculate Fees for Cloud Services.
i. Cloud Services: Subject to Customer and its Authorized Users complying with the terms of this Agreement, including any applicable Fees specified in the Order Form, Supplier grants Customer a limited, non-exclusive, non-transferable right to access and use the Cloud Services specified in the Order Form throughout the Term. This access is strictly for use by Authorized Users within the designated Territory, in accordance with the Usage Metrics outlined in the Order Form. It is intended for internal business operations and managing Customer's relationships with Partners on a limited commercial basis. Specific terms for certain Products are detailed in Appendix A of these General Terms and Conditions (GTCs) (referred to as Product Specific Terms or PSTs), which apply if the Order Form pertains to the purchase of a listed Product from the PSTs. Supplier reserves all rights not explicitly granted to Customer. Customer acknowledges that internal controls within the Cloud Services may not inherently restrict usage to comply with specified Usage Metrics. Customer is responsible for ensuring that its Authorized Users comply with the Agreement and accepts liability for their actions.
ii. Third-Party Authorized Users:
Customers and any other users are only permitted to access or use the Cloud Services if explicitly allowed by the Agreement. Specifically, Customers must not:
tippingharry reserves the right to make changes to the Cloud Services at its discretion. These changes may be necessary for maintaining or improving service quality, competitiveness, cost-efficiency, performance, or compliance with legal requirements.
During the agreed Term, tippingharry may offer Customers access to Cloud Services under a free trial or evaluation period ("Evaluation License"), as indicated in an Order Form or other communication referencing these GTCs. By using the Evaluation License, Customers agree to these GTCs. Evaluation Licenses are subject to the terms and conditions in the Agreement. However, unlike other provisions in the Agreement, ALL EVALUATION LICENSES ARE PROVIDED "AS IS," WITHOUT INDEMNIFICATION, SUPPORT, OR WARRANTY OF ANY KIND. SUPPLIER INCURS NO LIABILITY TO CUSTOMER, AND THERE ARE NO LIMITATIONS ON CUSTOMER’S LIABILITY TO SUPPLIER. After the Evaluation License Term expires, it converts into an initial one-month Term for the Cloud Services. This new Term maintains the same Usage Metrics as the Evaluation License, and Customers will be billed at the current list Fees for the Cloud Services, invoiced immediately. This conversion will occur unless, before the end of the Evaluation Term, the Customer (i) arranges a different agreement with tippingharry documented in an Order Form, or (ii) informs tippingharry of their decision to opt-out of the Evaluation License conversion.
tippingharry provides dedicated customer support for our Cloud Services through our experienced support team. You can reach our support team via phone, email, or chat. Unless otherwise specified, support will be offered in English. Additional terms for these services can be found in the Documentation or an Order Form. Please note that our support is intended to address issues specific to our Cloud Services and does not cover employee training or third-party products.
We may not provide support if:
If these conditions are breached, any time and materials used will be billed at our standard rates. Our support services are exclusively for our Cloud Services.
tippingharry offers Professional Services as detailed in an Order Form or Statement of Work (SOW), in accordance with the terms of the Agreement.
Both parties can request changes to the SOW by submitting a Project Change Request (PCR). Upon receiving a PCR, tippingharry will evaluate the financial and scheduling impacts. Both parties will review these assessments to decide on the PCR's acceptability. We will not unreasonably reject a PCR if you agree to the additional costs and schedule changes. If agreed upon, the PCR will be executed. If not agreed within five business days, the submitting party can withdraw the PCR or terminate the SOW as per Section 11(d). Additional services due to your actions or delays will be billed at our current rates.
Some SOWs may specify "Deliverables," including documents and materials prepared by tippingharry for you. We grant you a license to use these Deliverables for your internal business needs, excluding new software development or modifications, which require separate agreements. You must notify us of any non-conformities in the Deliverables within ten business days of receipt. We will correct any issues at no extra charge. If no response is received within this period, the Deliverables are considered accepted.
We will assign personnel to provide services and ensure their performance and compliance with the Agreement. Requests to reschedule our personnel may result in additional costs.
New software development or modifications are considered Professional Services and will be detailed in SOWs. tippingharry retains control over the design and development of Cloud Services. Requests for modifications to the Cloud Services will be handled separately at our prevailing rates.
Customers are responsible for all fees related to Products as specified in an Order Form or Statement of Work (SOW), referred to as “Fees.” These fees follow the terms of the Agreement and any additional conditions regarding currency specified in the Order Form or SOW. Unless the Agreement states otherwise, payment obligations cannot be canceled, and Fees are non-refundable. Fees remain fixed during the Initial Term unless the Customer exceeds licensed quantities, upgrades, requests additional Products, or agrees to fee changes in an Order Form. Purchased quantities cannot be reduced during any Initial or Renewal Term. The Supplier may adjust Fees before a Renewal Term, but no more than once a year.
Customers will reimburse the Supplier for all travel and related expenses incurred while providing Products. Pre-approval from the Customer is required, usually documented in an Order Form or SOW outlining a travel or expense budget.
Fees are invoiced according to the Order Form or SOW. Invoices are due upon receipt unless otherwise specified. Overdue accounts may incur interest as permitted by law. If the Supplier accepts Credit Card payments, the Customer authorizes third-party payment processing and the disclosure of payment information.
Each Party is responsible for identifying and paying taxes and fees imposed on them by applicable law. The Customer pays Fees exclusive of taxes the Supplier is required to collect, such as VAT or GST, unless exempt documentation is provided timely. Payments should be made without deductions unless required by law. In such cases, the Customer will cover additional amounts to ensure the Supplier receives the full payment.
Customers must raise any invoice disputes within thirty days of the invoice date. Undisputed amounts remain payable. Both Supplier and Customer will make reasonable efforts to resolve disputes within thirty days of the Supplier receiving notice.
Occasionally, third parties or the Supplier acting on their behalf may offer Customers various resources such as software, APIs, documents, data, content, specifications, products, equipment, components, websites, or professional services. These resources, collectively known as "Third-Party Content," are compatible with or accessible through our Cloud Services but are not integrated or inseparable from them. The Supplier is not responsible for licensing, implementing, or operating Third-Party Content unless specified in an Order Form or SOW.
The Cloud Services may include third-party software, libraries, or code, referred to as Embedded Third-Party Content, which are integral to our services and licensed by the Supplier. Additional terms and conditions may apply to Embedded Third-Party Content as outlined in the Product-Specific Terms (PSTs). Any open source software included is subject to the respective open source licenses specified in the PSTs.
When using our Cloud Services in collaboration with your Partners, you agree to establish and uphold a Customer-Partner Agreement governing that relationship. This agreement should cover key aspects such as documenting Offers, dispute resolution procedures, compliance with applicable laws (including Export Laws as defined in Section 15(a) below), and explicitly state that the Supplier assumes no liability for damages arising from the Customer-Partner Agreement. If the Supplier provides sample terms and conditions for use with Partners, these are solely for reference. It is the responsibility of the Customer and Partner to ensure the adequacy of their agreement terms.
Except for the rights explicitly granted in the Agreement, Supplier retains complete ownership and intellectual property (IP) rights over the Products and Supplier Materials, including any enhancements or modifications. The Customer understands that they are being granted a license to use these items, not ownership. No sale or transfer of ownership is implied, except for the limited licenses specifically stated in the Agreement. The Customer agrees not to claim any rights against Supplier or its affiliates concerning these Products and Supplier Materials.
The Customer retains all rights, including IP rights, to their Customer Data, except as explicitly granted in the Agreement.
The Customer grants Supplier a non-exclusive, worldwide, royalty-free, perpetual, and irrevocable license to access and use Customer Data to enforce the Agreement, exercise rights, and fulfill obligations. This includes the creation of Usage Data, which becomes Supplier Materials. If Usage Data is considered Customer Data, the Customer grants Supplier a non-exclusive, irrevocable, transferable, and perpetual license to use it as necessary. Additional rights may be granted through an Order Form.
Any feedback, suggestions, or information provided by the Customer regarding Product improvements are owned by Supplier. Customers are not required to provide such feedback.
Each party retains ownership of its Marks. The Customer must obtain Supplier's written consent to use Supplier's Marks. Unless specified otherwise, the Customer allows Supplier to use its Marks in promotional materials. Supplier acknowledges no proprietary interest in Customer's Marks but retains ownership of its promotional materials. The Customer can terminate permission for using its Marks with a 30-day notice, after which Supplier must stop using the Marks in future materials but may continue using existing materials that feature the Marks.
Customers must comply with all relevant anti-spam and data privacy laws and regulations. They are responsible for obtaining all necessary rights and permissions to use their data with tippingharry' Products, including licensing the data to tippingharry as outlined in the Agreement. Customers must maintain data integrity, implement access controls for Authorized Users, and secure their data against unauthorized access and loss, in line with the capabilities of tippingharry' Products. Some responsibilities may be shared with tippingharry as specified in the Agreement.
Compliance with Privacy Laws: tippingharry will adhere to anti-spam and privacy laws while performing services under the Agreement. Upon request, tippingharry will provide reasonable assistance to Customers to help meet their legal obligations, although additional fees may apply for professional services unrelated to Agreement breaches.
Data Security: If tippingharry processes Personal Data, the terms of the Data Processing Agreement (DPA) are incorporated into the Agreement. If Personal Data is not processed, tippingharry will still take reasonable measures to protect Customer data from unauthorized use or disclosure. In the event of a data breach within tippingharry' control, tippingharry will promptly inform Customers, investigate and remedy the breach, and provide necessary information for their investigations.
Under this Agreement, both parties may access each other’s Confidential Information. Confidential Information includes any information disclosed that is:
Confidential Information does not include information that the recipient can demonstrate:
Both parties agree to handle each other’s Confidential Information with at least a reasonable level of care. Confidential Information may only be shared with employees, subcontractors, consultants, agents, and representatives of the receiving party and its Corporate Affiliates who need it to fulfill their duties under the Agreement, and these individuals must be bound by confidentiality terms no less restrictive than this Section. Each party is responsible for actions of their personnel; breaches by them are treated as breaches by the party.
Supplier may share Customer Confidential Information with a Partner or Third-Party Content provider if necessary to support the Customer’s relationship. Disclosure in response to legal processes (e.g., subpoena) is permitted if prompt notice is given to the other party and assistance in seeking a protective order is provided. Both parties acknowledge that monetary damages alone are insufficient for breaches and may seek injunctive relief.
“Sensitive Personal Information” includes financial details, sexual preferences, medical or health records protected by health data laws, biometric data for unique identification, children’s personal information under COPPA, and similar information under applicable laws. Customers must not collect, process, or store Sensitive Personal Information using Cloud Services unless explicitly permitted through an Order Form, SOW, or prior written consent. Signing any relevant agreement (e.g., Business Associate Addendum or DPA) constitutes consent.
Upon termination or expiration of the Agreement, except where necessary for surviving rights:
However, the receiving party may retain a copy for legal requirements or records retention, provided it maintains the restrictions outlined in this Section. Supplier is not required to retain data beyond thirty (30) days after expiration or termination of the Agreement or Order Form.
Supplier will defend Customer, at its own expense, against any third-party claims, suits, or legal actions alleging that Customer's use of a Product under the Agreement infringes on third-party intellectual property (IP) rights. Supplier will cover any resulting damages, attorney fees, and costs awarded against Customer, provided that:
If Supplier believes a Product infringes third-party IP rights, Supplier may, at its discretion:
Supplier is not obligated to defend or indemnify against claims arising from circumstances outlined elsewhere in the Agreement.
Customer will defend Supplier against any third-party claims arising from:
Customer will cover any resulting damages, fees, and costs, provided that:
This clause establishes the responsibilities of both parties regarding third-party claims of IP infringement or misappropriation, providing a clear framework for managing and resolving such disputes.
Both Parties confirm that:
Supplier guarantees that Cloud Services will substantially conform to the current Documentation. If Customer identifies non-conformance and notifies Supplier within 30 days, Supplier will make commercially reasonable efforts to correct the issue, unless caused by:
If Supplier cannot resolve the issue within 90 days (the "Remedy Period"), Customer may terminate the license for the non-conforming Cloud Service and receive a Pro Rata Refund. This right must be exercised within 15 days after the Remedy Period ends or it will be waived.
Supplier ensures that services are performed professionally and in line with industry standards. If Customer identifies documented non-conformance and notifies Supplier within 30 days, Supplier will make reasonable efforts to rectify it, unless caused by:
Any SLAs specified in an SOW, Order Form, or Product-Specific Terms (PSTs) are binding. Failure to meet an SLA does not constitute a breach of the warranty above unless explicitly stated. Remedies for SLA failures are outlined in the respective SLAs.
Customer confirms to Supplier that:
Except for the warranties stated above and as allowed by applicable law, Products and Third-Party Content are provided "as is" and "with all faults." Supplier disclaims all other warranties, whether express or implied, including:
Certain jurisdictions may not allow the exclusion of some warranties, so these disclaimers may not fully apply. Nothing in this Agreement limits any rights or remedies guaranteed by applicable law. Customers are responsible for determining the suitability of Products for their needs. No other terms, conditions, representations, warranties, or guarantees, whether written or oral, express or implied, are part of this Agreement or have legal effect.
Our liability under this Agreement or in connection with the Products is limited as follows:
These limits of responsibility are intended to fairly allocate risk between the Parties, and our pricing reflects this allocation and the limitation of liability outlined here.
The initial term for any Order Form or Statement of Work (SOW) begins on the Effective Date specified and lasts for the period outlined (the "Initial Term"), unless terminated earlier according to the Agreement. Unless specified otherwise, the Order Form will automatically renew under the current Usage Metrics for additional periods equal to the Initial Term or one year (whichever is shorter), unless either party provides thirty (30) days' written notice before the end of the Initial Term or any Renewal Term. All terms remain effective during Renewal Terms unless agreed otherwise in writing. These General Terms and Conditions (GTCs) align with the Order Form or SOW incorporating them.
Supplier may terminate the Agreement if Customer defaults on a material term and fails to rectify it within thirty (30) days of written notice. Immediate termination is possible if Customer's actions violate laws or cause significant harm to Supplier or its products.
Customer may terminate the Agreement if Supplier defaults on a material term and doesn't rectify it within thirty (30) days of written notice, or if Supplier becomes insolvent or faces bankruptcy proceedings.
Upon termination or expiration, any amounts owed become immediately due, and Customer's access rights are revoked. Certain obligations and provisions, such as confidentiality and dispute resolution, continue after termination or expiration.
Both parties agree not to transfer their rights or responsibilities under this Agreement without prior written consent from the other party. However, Supplier may transfer the Agreement to any of its Corporate Affiliates without Customer's consent, provided the Agreement remains valid and beneficial for any successor or assignee of Supplier.
If Customer is acquired by a direct competitor of Supplier, sells a significant portion of its assets to such a competitor, or undergoes a change of control in favor of such a competitor, Supplier reserves the right to terminate the Agreement immediately upon written notice.
a. Applicable Law and Jurisdiction: The governing law for interpreting this Agreement, determining its existence, or addressing any disputes arising from it, as well as the courts with jurisdiction, will depend on the country of incorporation or organization of the Customer:
b. Agreement to Law and Jurisdiction: Each party agrees to the governing law above, disregarding choice or conflict of law rules. The parties also agree, subject to availability of injunctive relief under Section 5(c) (Confidentiality) and Section 12 (Dispute Resolution), to submit to the jurisdiction of the relevant courts. The parties specifically exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
If any disputes arise, both parties will designate senior management representatives to attempt to resolve the issue. These representatives will negotiate in good faith for thirty (30) days. If a resolution is not reached within that period, the dispute will be submitted to binding arbitration in the jurisdiction specified in Section 13(a).
An impartial arbitrator with expertise in legal and business matters in the software industry will conduct the arbitration. The parties will equally share the arbitrator's fees and will each bear their own costs, including legal fees, unless the arbitrator decides otherwise.
The arbitration will be conducted in English and follow the relevant arbitration rules, at a location based on the Customer's country of incorporation. This arbitration process does not prevent either party from seeking injunctive relief.
tippingharry acknowledges that its Products and related items may be subject to export laws and regulations. We will comply with all such laws when providing Cloud Services or partnering with others. We certify that we are not listed on any U.S. government denied-party lists and will not permit access to Products in embargoed countries or in violation of export laws.
We confirm that we have not received any illegal or improper benefits from the Supplier’s employees or agents in connection with this Agreement. Reasonable business gifts and entertainment are not included in this restriction. If we become aware of any violations, we will promptly inform the Supplier.
The Supplier may use subcontractors to provide or develop Products as needed, without relieving the Supplier of its obligations under this Agreement.
During the Agreement and for one year after its termination, neither party will recruit the other party's employees without written consent. Exceptions include general job postings, use of search firms, or hiring individuals who have left the other party’s employment.
Notices must be in writing and may be delivered personally, via international shipping services, or by email with confirmation.
This Agreement represents the entire understanding between the parties and supersedes all prior communications. It takes precedence over conflicting terms in purchase orders. If any provision is found invalid, the remaining provisions remain effective. The Supplier may update these General Terms and Conditions (GTCs), with changes taking effect thirty (30) days after notifying you via email or an invoice containing a URL to the new GTCs. You are responsible for reviewing these updates.
If you object to any significant modifications that reduce your rights or increase the Supplier's obligations, you may notify the Supplier before the changes take effect. The Supplier will negotiate in good faith or may terminate the Agreement with thirty (30) days’ notice. If the Agreement is terminated, you will receive a Pro-Rata Refund for Fees paid for affected Products from the termination date.
Failure to object before the changes take effect constitutes acceptance of the new terms. Except for the Supplier’s right to update the GTCs, modifications to the Agreement require a written amendment signed by both parties.
Waivers are only valid if in writing and signed by the issuing party. Neither party is liable for delays or failures to perform due to Force Majeure Events, provided reasonable efforts are made to mitigate their impact.
The Supplier may conduct annual audits to ensure your use of the Products aligns with the Agreement. You agree to cooperate and cover any fees for usage exceeding agreed metrics, notified within thirty (30) days. Audits will not unreasonably disrupt normal business operations. The Supplier bears the audit costs except for those related to your cooperation.
This Agreement establishes an independent contractor relationship between the Supplier and Customer. Neither party is an agent, employee, joint venture, or partner of the other. Neither party is authorized to bind the other or incur obligations on its behalf.