This Agreement governs the use of the Tessell Database Services and consists of these general terms and conditions ("General Terms"), the Service Level Agreement ("SLA"), and the Support Plans Description. The Customer accepts this Agreement either by indicating acceptance when first registering to use the Database Services or executing an Order Form that references these General Terms. If the individual accepting this Agreement is accepting it on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to this Agreement. If the individual accepting this Agreement does not have such authority or does not agree with this Agreement, such individual must not accept this Agreement and may not use the Database Services.
If the Customer registers for a free trial of the Database Services, the applicable provisions of these General Terms will also govern that free trial. The Database Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 30 June 2022. It is effective between Tessell and the Customer as of the date of the Customer accepting this Agreement.
Tessell will provide the Database Services to the Customer substantially as set out on Tessell's Web Site and in this Agreement. The Customer may order Database Services through the Web Site account subject to the following: (1) orders may be made by the Customer after registering at the Web Site or automatically by using APIs of the Database Services; (2) the Customer shall be responsible for any orders made under the Customer's account, whether by the Customer itself, by its authorized users, or by the Customer's data systems automatically, and shall be responsible for the payment of all Fees based on orders made under the Customer's account; (3) no order made by the Customer is valid until accepted by Tessell. Tessell shall be deemed to have accepted the order if it supplies the Database Services to the Customer. Tessell reserves the right to place controls and restrict the Customer's orders of the Database Services; (4) After Tessell has accepted the order, Tessell will provide the Database Services to the Customer without undue delay.
Unless set out to the contrary, the Database Services are supplied on an "as is" and "as available" basis without any guaranteed service levels. Any applicable service levels have been set out in the SLA and are only applicable to the individual Database Service. A failure to comply with any service level shall not, however, be construed to be a breach of this Agreement, but may give the Customer the right to receive compensation set out in the SLA. Such compensation shall be the Customer's sole remedy and Tessell's sole liability as regards any non-compliance with any service levels.
The Database Services are updated from time to time due to their inherent nature. Tessell reserves the right to make changes to the Database Services at any time. If a change made by Tessell has an adverse effect on the agreed contents of the Database Services or the agreed service levels (if any), Tessell shall inform the Customer of such change at least thirty (30) days before the effective date of the change. In such a case the Customer shall have the right to terminate applicable Database Services in accordance with Section 12.2 or terminate the relevant Order Form subject to a thirty (30) days' written notice. The termination notice must be delivered to Tessell in writing prior to the effective date of the change.
Tessell shall always have the right, but shall have no obligation, to make such changes to the Database Services that (a) concern or relate to the production environment of the Database Services and do not have an adverse effect on the agreed contents of the Database Services or the agreed service levels or hosting locations, (b) are necessary to prevent any data security risk to the Database Services, or (c) result from applicable laws or from a court or administrative order. The Customer shall not have the right to terminate any separately agreed Order Form due to any such changes.
All facilities used to store and process the Customer's data will adhere to reasonable security standards no less protective than the security standards at facilities where Tessell (or its Subprocessor as relevant) processes and stores its own information of a similar type. Tessell has committed to comply with the information security standard ISO 27001.
The Customer uses Beta Services and/or Beta Features in its sole discretion and at its own risk. Beta Services and Beta Features may not be as reliable or as available as the Database Services. Beta Services and Beta Features may be changed at any time without notice and may not reach general availability status, i.e. similar status as the Database Services. Tessell will have no liability arising out of or in connection with the Beta Services and/or Beta Features.
The Customer may choose to order optional Support Plans. A description of the Support Plans is set out in the Support Plans Description, and Tessell shall provide the Support Plans to the Customer substantially as set out in the Support Plans Description and in this Agreement.
All Database Services include email support with responses provided on a best-effort basis without any guaranteed service levels. If the Customer has selected a support tier with service levels applicable to the Support Plans, the Support Plans shall be provided in accordance with such agreed service levels. A failure to comply with any service level shall not, however, be construed to be a breach of this Agreement, but may give the Customer the right to receive a compensation set out in the Support Plans Description. Such compensation shall be the Customer's sole remedy and Tessell's sole liability as regards any non-compliance with any service levels.
Tessell shall use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer. Tessell shall review all requests for improvements and new functionality, but Tessell shall have no obligation to provide any modifications to the Database Service.
Fees and Payment Terms
The rates applicable for the Database Services may be reviewed at Tessell's Web Site. Actual Fees for Database Services will vary depending on the Customer's use of the Database Services.
Tessell uses a credit card processing service provided by Stripe, Inc. (https://stripe.com/ ) ("Stripe") to process its payments. The Customer consents to the use of the Stripe service and to the transfer of its credit card details to Stripe. The Customer is familiar and agrees to be bound by any third party terms applicable to the Stripe service.
All Fees are automatically charged monthly in arrears from the Customer by using the Stripe service set out in Section 3.2 above. If separately agreed with the Customer, the Fees for the use of the Database Services shall be invoiced monthly in arrears based on the Customer's use of the Database Services. In case a separate invoice is sent, the Customer is responsible for paying any Fees properly due in accordance with the invoices sent by Tessell.
Tessell reserves the right to increase the rates applicable to the Database Services where this is justified due to the general increase of Tessell's costs and expenses of production (such as but not limited to general increase of labor costs and expenses). Further, Tessell may increase the rates applicable to the Database Services by an amount corresponding to an increase of costs of relevant third party offerings. Tessell will inform the Customer of such change at least thirty (30) days before implementing such change. Continuous use of the Database Services will be deemed as acceptance of the new Fees.
All rates and Fees are set out without value added tax (VAT) or any other applicable sales tax, which shall be added to the rates and Fees in accordance with the then-applicable tax laws and regulations. In case a separate invoice is sent, the term of payment of each invoice shall be fourteen (14) days net from the date of the invoice.
Customer's General Obligations
The Customer shall be responsible for its own devices, systems, applications, connections and software used to access the Database Services. The Customer shall be responsible for the protection of the Customer's data communications and data systems and costs for communications and other comparable costs related to use of the Database Services.
The Customer may authorize users to use the Database Services under the Customer's account (e.g. for the purposes of using the Customer's databases). The Customer shall ensure that any users it authorizes to use the Database Services under the Customer's account comply with this Agreement at all times and use the Database Services only in accordance with this Agreement and the Acceptable Use Policy. The Customer shall be responsible for any use of the Database Services under the Customer's account.
The Customer shall be responsible for ensuring that its authorized users maintain their user names and passwords diligently and do not disclose them to third parties. The Customer undertakes to inform Tessell without delay if any password has been revealed to a third party or if the Customer has a reason to suspect misuse of a user name or password. The Customer's liability for the misuse of the Database Services by the use of the user name or password of its user shall expire when Tessell has received Customer's written and sufficiently detailed notice of such misuse. The Customer shall change the password required for the use of the Database Services upon written request of Tessell if necessary due to data security risk to the Database Services.
The Customer is solely responsible for making appropriate backups of its data, and Tessell or its Subprocessors shall in no way be liable for any deletion of or failure to store any data of the Customer or other communications maintained or transmitted to the use of the Database Services.
Intellectual Property Rights
Subject to the terms of this Agreement and subject to the due payment of all Fees, the Customer shall have a limited, non-exclusive, non-transferable right to use the Database Services during the term of this Agreement or the term of the relevant Order Form.
All rights, title and interest, including all Intellectual Property Rights in and to the Services, and any changes thereto shall belong exclusively to Tessell or its licensors. Except for the express license to use the Database Services granted to the Customer under and in accordance with the terms and conditions of this Agreement, the Customer shall have no and shall not by virtue of this Agreement obtain any rights, license or interests in and to the Services or any Intellectual Property Rights pertaining thereto.
The Customer shall be solely responsible for its use of the Database Services including any breach of this Agreement by the Customer or any of its authorized users.
All licenses granted to the Customer under the Agreement shall terminate upon the termination of the Agreement for any reason.
To the extent the Customer inputs any personal data into the Database Services and the processing is subject to the EU General Data Protection Regulation (2016/679, the GDPR), the Parties acknowledge that the Customer acts as a data controller and Tessell is the data processor processing personal data together with its Subprocessors on behalf of the Customer for the purpose of providing the Database Services.
Acceptable Use Policy
The Customer shall use and ensure that its authorized users use the Database Services in accordance with the following acceptable use policy ("Acceptable Use Policy"). The Customer is solely responsible for ensuring that the Database Services are not used:
to violate, or encourage the violation of, the legal rights (including without limitation Intellectual Property Rights) of others;
to engage in, promote or encourage any illegal activity;
for any unlawful, invasive, infringing, defamatory, offensive, harmful or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
to violate the security or integrity of any network, computer or communications system, software application or network or computing device (such violations to include without limitation unauthorized access, interception of data or traffic or falsification of origin);
to make connections to any users, hosts or networks unless the Customer has permission to communicate with them (such network abuses to include without limitation monitoring or crawling, denial of service attacks, intentional interference, operating open proxies, open mail relays or open recursive domain name servers, or to avoiding system restrictions);
to interfere with the use of the Database Services, or the equipment used to provide the Database Services, by others;
to disable, interfere with or circumvent any aspect of the Database Services;
to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertising or other solicitations ("spam"), including alteration or obscuring mail headers or assuming sender's identities, collecting replies to messages sent from a third party provider if such messages would violate the policies set out herein or comparable policies of such third party; or
to use the Database Services, or any interfaces provided with the Database Services, to access any other product or service of Tessell, its Subprocessors or subcontractors, in a manner that violates their applicable terms of service.
Tessell (and its Subprocessors and subcontractors where appropriate) reserve the right but assume no obligation to review the Customer's use of the Database Services, including the Customer's data to ensure compliance with the Acceptable Use Policy and to discontinue any use by the Customer of the Database Services and removing any infringing data of the Customer. Tessell (and its Subprocessors and subcontractors where appropriate) may report suspected infringing activities to officials, regulators or other appropriate third parties, including the disclosure of appropriate information regarding the Customer.
If the Customer becomes aware that its use of the Database Services infringes the Acceptable Use Policy set out herein, the Customer agrees to immediately cease the infringing use of the Database Services without separate notice. The Customer agrees to comply with any requests of Tessell as regards to any use of the Database Services that infringes the Acceptable Use Policy set out herein.
Suspension and Discontinuation of Database Services
Tessell shall have the right to suspend the provision of the Database Services for a reasonable period of time if such is necessary in order to perform installation, change or maintenance work in respect of the Database Services or if such suspension results from installation, change or maintenance work in respect of public communication networks.
Tessell shall have the right to suspend the provision of the Database Services and/or deny the Customer's access to the Database Services without first hearing the Customer due to (a) a significant data security risk to the Database Services, (b) if applicable law or a court or administrative order requires Tessell to do so, (c) if Tessell becomes aware of, or reasonably suspects, any activities of the Customer or its authorized users that infringe on the Acceptable Use Policy or if the Customer has violated these General Terms or other agreements or guidelines which maybe be associated with use of the Database Services (d) if the Database Services are used contrary to, or for a purpose prohibited by this Agreement, applicable laws or court or administrative orders, or (e) the Database Services are used in a manner that jeopardizes the provision of the Database Services to other users. Tessell shall promptly notify the Customer of the suspension of the Database Services under this Section as well as the grounds for such suspension and shall use its best efforts to resolve the issue with the Customer without undue delay.
Tessell shall always have the right to suspend the Database Services, if the Customer is in default with its payment of undisputed Fees due under this Agreement and does not pay such Fees despite a request to pay within fourteen (14) days calculated from the date of such request. The suspension can be continued until the Customer has paid all Fees due under this Agreement, after which Tessell shall continue the provision of the Database Services.
The Customer understands that the Database Services are hosted by a Subprocessor of Tessell chosen by the Customer from the options provided by Tessell on the Web Site. Such Subprocessors may reserve rights to discontinue their hosting at any time. Tessell shall not be liable in any way for any discontinuation of such services provided by Subprocessors. Tessell undertakes to inform the Customer of such discontinuation without delay after having become aware of any third party plans to discontinue the provision of hosting services affecting the Customer.
Tessell agrees to defend the Customer, at Tessell's own expense, against any third party claims or actions where a third party claims that the Database Services infringe upon the Intellectual Property Rights of a third party, provided that the Customer: (a) notifies Tessell of such claim immediately upon receipt of notice thereof; (b) provides Tessell, free of charge, with all available information, permissions and assistance; (c) grants Tessell the sole and exclusive right to control the defense of the claim; and (d) does not agree on any settlement of such claim or action prior to a final judgment thereon by a competent court of law or court of arbitration, without the express prior written consent of Tessell.
If the Customer has acted in accordance with the sub-list (a)-(d) of Section 9.a, Tessell shall pay any damages finally awarded to the third party claimant by a competent court of law or court of arbitration.
If Tessell justifiably deems that the Database Services infringe or may infringe upon any third party rights, Tessell shall have the right, at its own expense and in its sole discretion, to (a) acquire for the Customer the right to continue the use of the Database Services; or (b) replace the Database Services; or (c) modify the Database Services to the extent necessary to avoid the infringement.
If none of the alternatives defined in Section 9.3 are available to Tessell on commercially reasonable terms and/or without the significant loss of time, Tessell shall have the right to terminate the Agreement in whole or in part subject to a notice period set by Tessell, upon which the Customer agrees to cease using the Database Services and Tessell agrees to reimburse the Fees paid by the Customer for the terminated Database Services, less a proportion equal to the time of use of the Database Services by the Customer.
The indemnity in this Section 9 shall not apply to, and Tessell is not liable for any claim that (a) is based on a claim by any Affiliate of the Customer; or (b) is based on the modification or alteration of the Database Services or a modification or alteration influencing the Database Services by the Customer or any third party; or (c) results from complying with any instructions, specifications or design given by the Customer or any third party under the command and control of the Customer; (d) arises or results from the use of the Database Services in combination with any software, equipment or products not developed or supplied by Tessell or which are contrary to instructions given by Tessell; or (e) could have been avoided by using the latest version of the Database Services made available by Tessell to the Customer.
This Section 9 sets out the entire liability of Tessell and the Customer's sole remedy in case of any infringement of any Intellectual Property Rights.
The Customer agrees to indemnify Tessell, at the Customer's own expense, against any claims made towards Tessell based on any information or data the Customer inputs to the Database Services, including without limitation claims that the Customer's data infringes third party intellectual property rights or that the data otherwise infringes applicable laws.
Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential ("Confidential Information"), and may not use such Confidential Information for any other purpose than those set forth in the Agreement. The confidentiality obligation shall, however, not apply to material and information, (a) which is or later becomes generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was rightfully in the possession of the receiving Party prior to receipt of the same from the disclosing Party without any obligation of confidentiality related thereto; (d) which a Party has independently developed without any use of or reference to the Confidential Information received from the other Party; or (e) which a Party is required to disclose under any mandatory law or by order of a court or governmental body of competent jurisdiction.
Each Party shall promptly upon termination of the Agreement, or when the Party no longer needs the Confidential Information in question for the purpose of performing its obligations or exercising its rights under the Agreement, cease using the Confidential Information received from the other Party and, unless the Parties separately agree on destruction of such Confidential Information, return the Confidential Information in question (including all copies and reproductions thereof) to the other Party. Each Party shall, however, be entitled to retain the copies required by law or administrative orders applicable to such Party.
Notwithstanding the confidentiality obligation set forth herein, each Party shall be entitled to use the general professional skills and experience acquired in connection with the performance of the Agreement.
The rights and obligations related to the Confidential Information shall survive the termination of this Agreement for any reason for a period of three (3) years from such termination.
Limitation of Liability
The total aggregate liability of a Party towards the other Party under the Agreement shall not exceed (i) an amount equal to the Fees paid by the Customer to Tessell during the six (6) months preceding the event giving rise to the liability; or (ii) fifty thousand (50,000) USD, whichever is less.
A Party shall not be liable for any indirect, incidental, or consequential damages such as loss of profits, revenue or business, damages caused due to decrease in turnover or production or loss, alteration, destruction or corruption of data.
The limitations of liability shall not apply to damages caused by willful misconduct or gross negligence or to liability under Section 9 (Indemnification) or Section 10 (Confidentiality).
Term and Termination
This Agreement shall enter into force when the Customer has accepted this Agreement when registering for the first time to use the Database Services. If the Database Services are ordered through a separate Order Form, this Agreement will become effective as stated in the Order Form.
Unless expressly set out to the contrary in the Order Form, the Agreement shall remain in force until terminated by a Party by a two (2) months' written notice to the other Party. Unless expressly set out to the contrary in the Order Form, the Customer may terminate the order of any individual Database Service at any time by choosing that option at the Customer's account on the Web Site, in which case the invoicing for the relevant Database Service shall be stopped from that day onward. If a Customer terminates individual Database Services, the Agreement remains in force until terminated as set out in this section 12.
Each Party may terminate the Agreement in whole for cause with immediate effect upon written notice to the other Party if (a) the other Party becomes insolvent, applies for or is adjudicated in bankruptcy or liquidation or corporate restructuring or otherwise ceases to carry on its business; or (b) the other Party is in material breach of the terms and conditions of this Agreement and fails to remedy such breach within thirty (30) days from the date of receipt of a written notice by the non-defaulting Party, such written notice detailing the breach and the intention to terminate.
Unless expressly set out to the contrary in the Order Form, upon the termination of the Agreement for any reason, any Fees owed by the Customer until the effective date of the termination shall become due.
If not instructed otherwise in writing by the Customer and unless legally required to keep Customer data uploaded to the Database Services, Tessell shall delete and destroy the data the latest within ninety (90) days' of the termination of the Agreement or after the maximum data retention period permitted by the technology of the relevant Database Service. In case the Customer demands that the Customer data are returned to the Customer or to a third party, the Customer will pay Tessell for any additional costs and expenses arising out of such return of the Customer data.
Tessell shall be free to use subcontractors in the performance of its obligations and exercise of its rights under this Agreement.
Tessell shall have the right to use its relationship with the Customer in its marketing and sales promotion activities.
This Agreement constitutes the entire agreement with respect to Customer's access to and use of the Database Services. Tessell's obligations regarding the Database Services are governed solely by this Agreement pursuant to which they are provided. In the event of discrepancy between this Agreement and the Tessell standard template Order Form, the text of the Tessell standard template Order Form shall prevail. For clarity, these General Terms shall prevail over any Customer general terms and conditions which may have been referenced in the Customer's standard template order form or purchase order.
Except as expressly provided herein, neither Party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each Party specifically disclaims all implied warranties, including any warranties of merchantability, fitness for a particular purpose, or non-infringement, and any warranties arising out of course of dealing, course of performance or use of trade to the maximum extent permitted by applicable law. The Database Services are provided to Customer strictly on an "as is" basis. Tessell shall have no responsibility for determining that Customer's proposed use of the Database Services complies with applicable laws and regulations in Customer's jurisdiction(s). Customer acknowledges and agrees Tessell is not engaged in providing legal, accounting, tax, or financial services or advice. No advice or information, whether oral or written, provided by Tessell will create any warranty or condition not expressly stated in this agreement.
Either Party shall not be liable for any delays or non-performance of its obligations or any damages caused by an impediment beyond its reasonable control, which it could not have reasonably taken into account at the time of entering into this Agreement, and whose consequences it could not reasonably have avoided or overcome. For instance, errors in public communication networks or electricity supply shall constitute such an impediment. Strike, lockout, boycott and other industrial action shall constitute a force majeure event also when the Party concerned is the target or Party to such action. A force majeure event suffered by a Subprocessor or a subcontractor of a Party shall also discharge such Party from liability. Each Party shall without delay inform the other Party in writing of a force majeure event and the termination of the force majeure event.
All formal notices and other formal communication between the Parties hereunder shall be made in the English language. Neither Party shall be entitled to assign nor transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Tessell shall, however, have the right to assign this Agreement in connection with a sale or transfer of its business or a relevant part thereof.
Tessell shall have the right to update the General Terms at its sole discretion. Tessell shall notify the Customer of material updates. Should the Customer not accept the updated General Terms, the Customer shall have the right to terminate the Agreement by a written notice to the Company, effective as of the effective date of the new General Terms
Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall also be deemed to survive.
Tessell shall have the right to delete Database Services which have been powered-off for more than 180 days. The Customer acknowledges that such deletion will also delete all backups of such deleted Database Service.
Governing Law and Disputes
The Agreement shall be governed by and construed in accordance with the substantive laws of USA, excluding its choice of law provisions.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the United States Chamber of Commerce. The number of arbitrators shall be one (1). The seat of arbitration shall be Woodland Hills, California. The language of the arbitration shall be English.
Notwithstanding anything set out in Section 14.2 above, Tessell shall have the right to claim unpaid Fees in a public court.
"Acceptable Use Policy" has the meaning set out in Section 7.1;
"Affiliate" of a Party means any legal entity that is (a) directly or indirectly owning or controlling the Party, or (b) under the same direct or indirect ownership or control as the Party, or (c) directly or indirectly owned or controlled by the Party, for so long as such ownership or control lasts. Ownership or control shall exist through direct or indirect ownership of more than fifty percent (50%) of the nominal value of the issued equity share capital or more than fifty percent (50%) of the shares entitling the holders to vote for the election of the members of the board of directors or persons performing similar functions;
"Agreement" means this agreement between Tessell and the Customer, consisting of these General Terms, the SLA, and the Support Plans Description available on the Web Site, and any Order Form with its appendices that Tessell and the Customer may have entered into;
"Beta Services" means a preview of the new Tessell Database Services, which are not necessarily feature complete;
"Beta Features" means features designated as beta, including early access features and customizations done on the standard product.
"Database Service(s)" means the cloud based services provided by Tessell to the Customer as set out in the Agreement;
"Customer" means the customer entity registering to use the Services or the customer entity set out in the Order Form, including its Affiliates, and entering into the Agreement with Tessell;
"Confidential Information" has the meaning set out in Section 10.1;
"Data Protection Regulation" means all applicable laws relating to data protection, including without limitation the EU General Data Protection Regulation (2016/679, the GDPR), laws implementing EU Directive 2002/58/EC and any amendments to or replacements for such laws and regulations;
"Fee(s)" means the compensation paid by the Customer for the Services;
"General Terms" has the meaning set out in the preamble above;
"Intellectual Property Rights" means any and all patents, utility models, design rights, copyrights (including the right to amend, modify, develop and assign), trademarks, trade names, inventions, trade secrets, domain names, know-how and any other industrial or intellectual property rights (including applications thereof);
"Order Form" means an order concerning the purchase of Services between the Parties. By entering into an Order Form under this Agreement, the Customer agrees to be bound by the terms of this Agreement, of which these General Terms form an integral and inseparable part of. The Order Form may include an executed quotation or purchase order for the Services. The scope of the Services, commercial details, effective date and term length for each separate order are specified in the applicable Order Form. The Order Forms will form an inseparable part of this Agreement in the order entered into;
"Services" means the services provided by Tessell under the Agreement, including Database Services and Support Plans;
"SLA" means Tessell Service Level Agreement which is located as an appendix of the Order Form;
"Subprocessor" means Tessell Affiliates and third parties; i) providing the back-end services for Tessell and/or ii) selected by the Customer to provide the hosting services for the data Customer inputs to the Database Services (e.g. Amazon, Microsoft). The Subprocessors and their services are listed on the Website.
"Support Plans" means the Support Plans provided by Tessell to the Customer;
"Support Plans Description" which is located as an appendix of the Order Form; and
"Web Site" means Tessell's web site available at tessell.com.