This section contains the End User Software License Agreement governing the use of TBSP on Google Cloud.
End-User Software License Agreement (the “Agreement”)
- Version 07-2019
The terms and conditions as set out below apply to the use of the TYMLEZ software.
By using, downloading, installing, copying, or accessing products, or by clicking on “I agree” on or adjacent to the screen where this agreement may be displayed, you hereby agree to be bound by and accept the terms of this agreement. If you do not agree with these conditions click on “I don’t agree”, you will then be unable to use TYMLEZ.
For the avoidance of doubt: this end user license agreement is a legally binding agreement between you (individual or single entity) and Tymlez B.V., a Netherlands based company, regarding to the TYMLEZ software that accompanies this agreement.
This agreement may be amended or added to from time to time.
You will be informed of such change when you download a new version of the TYMLEZ software.
You can find a PDF version of this agreement at the DOCS folder in the software.
Licensee can also receive the Software in machine-readable code on a conventional data carrier on request or as a download.
As a technical safety measure for preventing unauthorized usage of the Software, all original copies and downloads of the Software require licence keys. Licensee will receive licence keys from Licensor in the required quantity (cf. section 2.1 and 2.2 below).
The following definitions shall apply:
“Agreement” means this end user license agreement
“Escrow” means the arrangement where the foundation: Stichting Escrow Arrangements Europe in The Hague the Netherlands receives and disburses the source code and/or documents of the Software, with the timing of such disbursement by Stichting Escrow Arrangements Europe dependent on the performance by the parties of agreed-upon contractual provisions, “Documentation” All information regarding the Software, installation guide, functionality description etc. can be found online : http://gitlab.tymlez.com/
“End user” means Licensee
“Fit for use” means normal use as presented by Licensor in its Documentation
"Install" means placing including downloading the Software on a computer's hard disk, CD-ROM or other secondary storage device.
“Licensee” The entity that has bought the Software from an TYMLEZ official reseller and that has installed the Software in accordance with the Documentation and the provisions of this Agreement.
Official TYMLEZ resellers can be found at https://www.tymlez.com.
“Licensor” Tymlez B.V
“Partner” An entity that has entered into a Partner Agreement with TYMLEZ to offer, sell and distribute the Software to Resellers.
“Version” the first number of any publication of the Software by Licensor (Software version x.y ; x designates the Version). Licensor will only designate a new version number to a new software release if, compared to the previous version, new functionality was added, including major changes or improvements to the Software or compatibility with other third party software or platforms.
“Release” means any modification to the Software that does not add new functionality or is not considered a Version. Releases are designated by a (new) number behind the version number indication (Software version x.y ; y designates the Release).
“Reseller” A reseller is a person or entity that purchases the Software from a Partner with the intention of reselling the Software, and not to buy the Software for Reseller’s own use.
(i) executing or loading the Software into computer RAM or other primary memory, and
(ii) copying the Software for archival or emergency restart purposes.
“User” means a person addressed by the End user as being subject to the authentication process of the Software.
"Software" means the computer program TYMLEZ and accompanying hard copy or online documentation.
2.GRANT OF LICENSE
2.1 Purchased license
Subject to Licensee compliance with this Agreement, including Licensee timely payment of all License Fees, Licensor hereby grants to Licensee a perpetual, non-exclusive license to use the Software, subject to the terms and conditions set forth hereinafter. This License becomes effective upon acceptance of this Agreement during the installation process initiated by activating the license key of the Software and the subsequent license granted to the Software remains in full force until Licensee stops using the Software or until Licensor terminates this License because of Licensee's failure to comply with any of its terms and conditions.
2.2 Evaluation Software
If the applicable Order specifies that any Software is provided under an evaluation license or a free trial license, then subject to Licensee compliance with this Agreement, Licensor grants to Licensee a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Evaluation Software within the Licensed Capacity solely for evaluating whether Licensee wishes to purchase a commercial license for such Software. Notwithstanding , Licensor does not provide maintenance and support (Section 12), warranty or indemnification (Section 16) with respect to Evaluation Software.
2.3 Test and Development Software
If the applicable Order specifies that any Software is provided under a test and development license, then subject to Licensee compliance with this Agreement, Licensor grants to Licensee a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Test and Development Software within the Licensed Capacity in a non-production system used for software product migration testing, software product pre-production staging, testing new data sources, types or use cases, or other non-production use. In noway should the Test and Development Software be used for any revenue generation, commercial activity or other productive business or purpose. Notwithstanding anything to the contrary in this Agreement, Licensor does not provide warranty, or indemnification (Section 16) with respect to the Test and Development Software.
2.4 Licensor hereby grants to Licensee the right to install and use the Software on its local Network and its currently used operating system. To enable the installation a licence key must be installed. The license file contains a key which is valid for the purchased number of users and provided domain by licensee only. The license grants use to the agreed number of users and is tied to the domain specified in the license.
2.5 This License is limited to the current Version of the Software unless Licensee enters the software maintenance program of TYMLEZ, cf. section 12 below.
3. LICENSEE’S RIGHTS AND OBLIGATIONS
3.1 Licensee may either:
a. Make one copy of the Software solely for backup or archival purposes, or
b. Transfer the Software to a single hard disk, provided Licensee keeps the original solely for backup or archival purposes.
3.2 The Software and Documentation are protected by copyright laws of The Netherlands. Licensee must treat the Software and Documentation like any other copyrighted item. Licensee may not:
a. Copy the Documentation
b. Copy the Software except to make archival or backup copies as provided above
c. Modify or adapt the Software
d. Reverse engineer, disassemble, decompile or make any attempt to discover the source code of parts or the entire Software
e. Sell, sublicense, rent, lease or lend any portion of the Software or hardware containing the Software nor provide commercial services.
3.3 All Third Party Software is provided by the licensor of the Third Party Software and solely under such third party’s terms and conditions and not by Licensor. Therefore the obligations, duties and rights of Licensor and Licensee under this License Agreement do not apply to such Third Party Software.
Licensor only warrants that for a period of 30 days after delivery of the Software to Licensee (“Limited Warranty”):
A. The physical media or electronic download on which this copy of the Software is distributed (if any) will be free from defects in materials and workmanship under normal Use, and
B. The Software will perform substantially in accordance with the Documentation.
C. Licensor warrants that the Software and the documentation are free of defects in title as well as free of material defects that limit their functionality and performance as envisaged in the Documentation.
Licensor entire liability and Licensee exclusive remedy shall be:
A. The replacement of any CD-ROM(s) or other media not meeting the Limited Warranty which is returned to Licensor or to an authorized Dealer or Partner with a copy of Licensee’s receipt, or B. If Licensor or an authorized dealer is unable to deliver a replacement CD-ROM(s) or other media or download that is free of defects in materials or workmanship, Licensee may terminate this Agreement by returning the Software and Documentation and Licensee’s money will be refunded by the authorized dealer Licensee acquired the Software from. C. No consequential or other damages, Licensee’s exclusive remedy for any breach of any warranty or representation is as set forth above.
6.REPRESENTATIONS AND WARRANTIES
Licensor hereby represents and warrants to Licensee that:
A. Tymlez B.V. established under Dutch Law in the Netherlands is the owner of all right, title and interest, including copyrights, in all the Licensed Materials, Licensor was granted an exclusive license to (sub)license the Software to Licensee. B. Tymlez B.V. has not granted any rights or licenses to the Licensed Materials that would conflict with Licensor's obligations under this Agreement. C. Licensee's use of the Licensed materials as authorized by this Agreement will not infringe any existing copyright, trade secret, patent or trademark rights of any third party.
The limited warranty that appears above is the only warranty Licensor awards Licensee.
Licensor shall have the right to immediately terminate this License if Licensee fails to perform any obligation required of Licensee under this Agreement. If Licensee enters bankruptcy or becomes insolvent this license automatically terminates. Licensee may terminate at any time by destroying all copies of the Software and Documentation in its possession.
8. THE SOFTWARE
The Software shall consist of the modules or components, shall perform the functions and shall comply with the proposals and specifications, identified and set forth in the Documentation and the Whitepapers on www.tymlez.com.
“Open Source Software” is used in this product, amongst others:
ZPL: Copyright © 2014, Free Software Foundation, Inc. (FSF)
LGPL: Copyright © 2007, Free Software Foundation, Inc. (FSF)
BSD 2-Clause: Copyright © 2008, Regents of the University of California
BSD 3-Clause: Copyright © 1998, Regents of the University of California
ISC: Copyright © 2004-2013 by Internet Systems Consortium, Inc. (“ISC”)
GPL: Copyright © 1989, 1991 Free Software Foundation, Inc.
Apache: Copyright © 2004, The Apache Software Foundation. Inc.
Debian: Copyright © 2014, Debian Free Software
Expat/MITOpenSSL: Copyright © 1998-2011
The OpenSSL Project Copyright © 1998, 1999, 2000 Thai Open Source Software Center Ltd
ZLib: Copyright © 1995-2004 Jean-loup Gailly and Mark Adler
Oracle Berkeley DB : Copyright © 2007 Free Software Foundation, Inc.
IBM Public License: Copyright © 2014, International Business Machines Corporation and others.
GNU General Public License: Copyright © 1989, 1991 Free Software Foundation, Inc.
Sourceforge: © 1990 – 2014 Dice Inc. All Rights Reserved.
DotNetOpenAuth: ©2010 GitHub Inc.
Regarding the Open Source Software components this software is provided “as is” without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for particular purpose and non infringement. In no event shall the authors or copyright holders be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with this open source software or the use or other dealings with this open source software. Modifications or changes of any form to the TYMLEZ Materials incl. the source code made by anyone other than TYMLEZ employees is strictly prohibited
The Documentation shall consist of all operator and user manuals, training materials, guides, listings, specifications, and other materials for use in conjunction with the Software.
10. SOURCE CODE
The Software as deposited under the escrow agent (The Escrow Arrangements Europe foundation established under Dutch law in Amsterdam, the Netherlands) shall include its Source Code form (the "Source Code"), and all relevant explanations and documentation of the Source Code (collectively, "Commentary"). The escrow agent offers all Licensees of the Software the possibility to acquire an escrow grant. Such a grant gives licensee the right to call the Source Code in case any of the free fall conditions as defined by the escrow foundation i fulfilled. To establish an Escrow relation, send an e-mail at firstname.lastname@example.org mailto:email@example.com , accept the escrow license agreement and pay the escrow fee to the Escrow Arrangements Europe Foundation after receipt of the invoice. Upon receival of the escrow fee, the ESCROW is in effect.
11. NEW LOCATION
Licensee may, at any time, without prior notice to or consent of Licensor, transfer the Software to any location other than the site of initial installation for use on any other central processing unit ("CPU") which is owned or controlled by Licensee or by subsidiaries or other entities owned or controlled by Licensee, however once the Software is installed in Licensee’s domain, that domain cannot be changed nor is Licensee allowed to install the Software in another domain whether its owned by Licensee or not. Licensee shall thereafter promptly give Licensor notice of such new location.
12. SOFTWARE MAINTENANCE AND RENEWAL OPTION
During the warranty period, Licensor shall promptly notify via the maintenance portal of TYMLEZ at support.tymlez.com https://www.tymlez.com/support Licensee of any defects or malfunctions in the Software or Documentation of which it learns from any source. Licensor shall promptly correct any defects or malfunctions in the Software or Documentation discovered during such warranty period and provide Licensee with corrected copies of same, without additional charge. Any bugfixing shall be made accessible and downloadable to Licensee as a Release download under the same license key. Licensor's obligation hereunder shall not affect any other liability which it may have to Licensee. B. Licensor shall provide to Licensee, if Licensee registers at the maintenance portal of TYMLEZ at support.tymlez.comt https://www.tymlez.com/support and fulfils all maintenance payment obligations, full maintenance services to the Software as set out below as well as the right to upgrade the Software to the latest Versions (“Full Maintenance”). Upgrading to the latest version of the Software is not an obligation however any maintenance obligation of Licensor shall be limited (whatever the agreement) to the latest Version -1. After upgrading, Licensee may no longer use the previous Version of the Software Licensee has installed.
Full Maintenance services by TYMLEZ award additional warranty to Licensee:
• New versions and releases of the Software will incorporate at a minimum the same functional and technical aspects compared to the earlier version. This warranty does not extent to externally manufactured software. • The Software incorporates no other security features or measures as disclosed in the Documentation.
• The Software is, and will remain, compatible with Licensee’s system, infrastructure, operating systems, web browsers, databases etc., as long as such system, infrastructure, operating systems, web browsers, databases etc. meet the system technical requirements and recommendations for the Software as provided by the TYMLEZ website. • Upon user reports and experiences submitted to Licensor by Licensee, Licensor will continually strive for improvement of user experience and (suggested) functionality, if necessary in new versions and releases of the Software as part of full maintenance. This shall not be construed as providing for an obligation for Licensor.
Licensor’s full maintenance services shall not include
• maintenance services that become necessary on the grounds of Licensee’s or another third party’s unauthorised interference with the Software and/or such interference that corrupts or impairs its functions and functioning;
• maintenance services that become necessary because updates or upgrades supplied were not installed by Licensee;
• maintenance services regarding interfacing of the Software with other computer programmes, with the exception of those specified in the Documentation;
• maintenance services where the Software is not used under the usual field and operating conditions;
• recovery of Licensee’s data files;
• maintenance of computer hardware;
• maintenance services that become necessary because the wrong hardware has been used;
• adjusting the Software to the Licensee’s special requirements, installing the Software, providing briefings for the Software, or the construction/modification of templates.
Maintenance services are designed to maintain the operational readiness of the Software, and for repairing any problems appearing in the programmes, without, however, guaranteeing the exclusion of any interruptions of operational readiness. Apart from possible warranty obligations (cf. Section 4 and 5 above), Licensor owes Licensee its best efforts but not the success of the maintenance service in question.
Each party agrees that it shall not disclose to any third party any information concerning the customers, trade secrets, methods, processes or procedures or any other confidential, financial or business information of the other party which it learns during the course of its performance of this Agreement, without the prior written consent of such other party. This obligation shall survive the cancellation or other termination of this Agreement.
The Software contains trade secrets and proprietary know-how that belong to Licensor and it is being made available to Licensee in strict confidence.
ANY USE OR DISCLOSURE OF THE SOFTWARE, OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF LICENSOR TRADE SECRET AND OR PATENT RIGHTS.
Licensor is allowed to refer to the existence of this Agreement in any press release, advertising or materials distributed to prospective customers.
15. LICENSOR'S PROPRIETARY NOTICES
Licensee agrees that any copies of the Software or Documentation which it makes pursuant to this Agreement shall bear all copyright, trademark and other proprietary notices included therein by Licensor and, except as expressly authorized herein, Licensee shall not distribute same to any third party without Licensor's prior written consent.
Licensor agrees to indemnify and hold harmless Licensee and its subsidiaries or affiliates under its control, and their directors, officers, employees and agents, against any and all losses, liabilities, judgments, awards and costs (including legal fees and expenses) arising out of or related to any claim that Licensee's use or possession of the Software or Documentation, or the license granted hereunder, infringes or violates the copyright, trade secret or other proprietary right of any third party. Licensor shall defend and settle at its sole discretion all suits or proceedings arising out of the foregoing, provided that Licensee gives Licensor prompt written notice of any such claim of which it learns.
All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by certified mail, return receipt requested, to the parties at the respective address as the party to receive the notice has designated by notice to the other party.
18. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of The Netherlands and all legal proceedings relating to the subject matter of this Agreement shall be maintained in courts sitting in Amsterdam, The Netherlands, and Licensor consents and agrees that jurisdiction and venue for such proceedings shall lie exclusively with such courts. Possible applicability of CISG 1980 is excluded.
If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.
20. NO WAIVER
The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.