Terms of Service

This Software Subscription Agreement (“SSA”) by and between Tycho Industries, Inc. and the customer identified on an Order Form (“Customer”), governs the provision of any Subscriptions, Services, and other materials or information provided by Tycho Industries to Customer. This SSA, Order Form(s), exhibits or statements of work(s) separately executed by the parties, and other documents expressly referenced herein or referencing this SSA are collectively referred to as the “Agreement.”  Unless specified to the contrary in an Order Form, this Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).

1. Definitions.

1.1 “Activation Date” means the date on which Customer is provided access to the Subscription.

1.2 “Tycho Industries Technology” means Tycho Industries’s proprietary software, technology, frameworks, platforms, methodologies, facilitation guides, questionnaires, techniques, general purpose consulting and related know-how, logic, coherence and methods of operation of systems, user interfaces, screen designs, presentation materials, and best-practices documentation, including any enhancements, modifications or derivatives thereof, which are provided to Customer. Subscriptions, maintenance, and Services each individually and collectively include elements of Tycho Industries Technology.

1.3 “Customer Data” means all data, information and materials provided by Customer for use with the Tycho Industries Technology.

1.4 “Digital Asset” means any Customer provided item of text or media that has been formatted into a binary source.

1.5 “Order Form” means one or more Tycho Industries order forms specifying the Subscriptions and Services to be provided to Customer by Tycho Industries.

1.6 “Subscription” means one or more subscription(s) to Tycho Industries Technology identified on an Order Form, including, related Support that may be provided by Tycho Industries from time to time for the Subscription.

2. Services PROVIDED.

2.1 Subscription Access.  Subject to the terms and conditions of this Agreement, Tycho Industries will make the Subscription available to Customer over the internet for Customer’s use in Customer’s internal business only.

3. FEES AND PAYMENT TERMS.

3.1 Fees.  Unless otherwise provided in an Order Form, Tycho Industries may invoice Customer for all fees and all other charges immediately following the Effective Date.  All fees specified in an Order Form are in U.S. Dollars and all payments must be submitted in U.S. Dollars.  Unless specified to the contrary in an Order Form, fees for any Renewal Term may be increased by Tycho Industries and will be invoiced on the same schedule as in effect for the billing period immediately prior to the expiration of the Term. Where applicable, and with written Customer approval, Customer will reimburse Tycho Industries for all reasonable travel, food, lodging and other out-of-pocket expenses incurred in performance of Services. 

3.2 Payment Due Date.  Unless otherwise provided in the applicable Order Form or Statement of Work, payment from Customer is due within thirty (30) days from the date of invoice. 

3.3 Late Payment. For any late payment, Customer may be required to pay interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.  In addition to other rights and remedies available to Tycho Industries hereunder together with cost of collection (including reasonable legal fees), Tycho Industries may suspend access to Subscription and stop providing Services if Customer does not correct any delinquent amounts within ten (10) days of receipt of written notice of nonpayment.  Any previously suspended Subscription and/or Services will be promptly restored following Tycho Industries’s receipt of all delinquent amounts.   Suspension under this Section 3.3 will not constitute a termination of this Agreement, nor will it relieve Customer of obligations or liabilities under this Agreement.

3.4 Taxes.  All amounts due under an Order Form do not include taxes or levy (including interest and penalties).  Customer will reimburse Tycho Industries and hold Tycho Industries harmless for all sales, use, VAT, excise, property or other taxes or levies which Tycho Industries is required to collect or remit to applicable tax authorities.  This provision does not apply to Tycho Industries’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Tycho Industries with a valid tax exemption certificate.

4. CUSTOMER OBLIGATIONS.

4.1 Customer Control.  Customer will be solely responsible for administering and monitoring the use of login IDs and passwords provided by Authorized Administrators within the Subscription or on behalf of Customer by Tycho Industries.  Upon the termination of employment of any User or Authorized Administrator, Customer will terminate that individual’s login ID and password.  Tycho Industries is not responsible for any damages resulting from Customer’s failure to manage the confidentiality of its login ID and passwords and Customer is responsible for any actions arising out of use or misuse of Customer’s login IDs. 

4.2 Prohibited Uses and Customer Restrictions.  Customer must not modify, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer the Tycho Industries Technology provided under this Agreement, except as explicitly permitted hereunder.  Unless otherwise expressly set forth in an Order Form, the Subscription and Services must be used solely by Customer, and not (by implication or otherwise) by any parent, other division, subsidiary or affiliate of Customer.  Customer must not permit a competitor of Tycho Industries to access the Tycho Industries Technology, except with Tycho Industries’s prior written consent.  Customer must not:  (a) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from the Tycho Industries Technology; (b) interfere with or disrupt the integrity or performance of the Tycho Industries Technology, or the data contained therein; (c) use the Tycho Industries Technology in a manner inconsistent with its applicable documentation; or (d) attempt to gain unauthorized access to the Tycho Industries Technology or related systems or networks.

5. WARRANTY.

5.1 Mutual Representations and Warranties.  Each Party represents and warrants that (a) it has the right and power to enter into this Agreement, and (b) an authorized representative has accepted this Agreement.

5.2 Limited Subscription Warranty.  Tycho Industries warrants that the Subscription will perform in all material respects with the functions described in the then-current Tycho Industries product documentation included in the Subscription for a period of ninety (90) days from the Activation Date.  This warranty does not apply if the Subscription is not administered by Customer in accordance with this Agreement and accompanying AUP, or any applicable instructions and training provided by Tycho Industries.  If the Subscription fails to operate as warranted in this Section 5.2 and Customer notifies Tycho Industries in writing of the nature of the non-conformance (“Notice”), Tycho Industries will use commercially reasonable efforts to promptly repair or replace the non-conforming Subscription without charge.  If, after a reasonable opportunity to cure, Tycho Industries does not remedy the non-conformance, Customer may no later than sixty (60) days after giving the Notice, terminate the Subscription portion of the Order Form and receive a refund of the prepaid Subscription fees for the period following the date of Notice.  The foregoing provides Customer’s sole remedy for breach of the exclusive warranty in this Section 5.2.

5.3 Services Warranty.  Tycho Industries warrants that all Services performed hereunder will be performed in a workmanlike and professional manner.

5.4 Disclaimer of Warranties.  EXCEPT AS PROVIDED IN THIS AGREEMENT, Tycho Industries MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.  Tycho Industries does not warrant that the Subscription or the data stored through the use of the Subscription are not susceptible to intrusion, attack or computer virus infection.

6. LIMITATON OF LIABILITY.

6.1 Liability Cap.  IN NO EVENT WILL Tycho Industries, Tycho Industries’S LICENSORS OR CONSULTANTS BE LIABLE UNDER ANY THEORY OF LIABILITY, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION AND SERVICES GIVING RISE TO SUCH DAMAGES IN THE ONE (1) YEAR PERIOD PRIOR TO THE CLAIM.

6.2 Disclaimer of Damages.  IN NO EVENT WILL Tycho Industries, Tycho Industries’S LICENSORS OR CONSULTANTS BE LIABLE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOST PROFITS EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

7. GENERAL.

7.1 Entire Agreement.  This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements or representations, whether oral or written.  This Agreement may not be modified or amended, except in writing signed by an authorized representative of each party.  Any ordering document (e.g., purchase order) that originates from Customer will not be binding on Tycho Industries, and any accompanying terms and conditions are null and void. In the event of any conflict among the terms of this Agreement, an Order Form, or a SOW, the following order of precedence will apply:  (1) Order Form; (2) Agreement; (3)SOW.

7.2 Compliance with Laws. Tycho Industries agrees to comply with all laws applicable to Tycho Industries in the provision of Subscriptions and Services hereunder.  Customer agrees to comply with all laws applicable to Customer in its receipt and use of Subscriptions and Services hereunder.

7.3 Counterparts.  This Agreement (including Order Forms) may be executed in counterparts, which together form one legal instrument.  Any executed copy of this Agreement made by reliable means (e.g., photocopy, scan copy, electronic signature or facsimile) is considered an original.

7.4 Notices.  Notices under this Agreement will be in writing, signed and provided to the contact and address indicated in the Order Form, provided that a party may change such contact or address by written notice to the other party.  All notices under this Agreement will be in writing and sent by (a) personal delivery, including confirmed scan delivered by email; (b) overnight courier; or (c) first class mail, certified or registered, return receipt requested.  Notices to Tycho Industries will be addressed to the attention of:  Chief Financial Officer.

7.5 Publicity. Tycho Industries may identify Customer as a customer of Tycho Industries. Tycho Industries may issue a press release announcing the relationship formed by the Agreement, which will provide to Customer for a period of review and comment prior to release.  Tycho Industries may issue a press release announcing the results obtained by Customer from using the Subscription, subject to the prior approval of Customer, not to be unreasonably withheld or delayed.

7.6 Headings.  Headings are for reference purposes only and have no substantive effect.

7.7 Assignment. In the event of Customer’s acquisition of, or merger with, a third party Customer may continue to use the Tycho Industries Technology and the obligations and rights of Customer under this Agreement will apply to, and may be exercised only in connection with, the operations of Customer as they existed on the date prior to the acquisition or merger.  Customer may not otherwise assign this Agreement or otherwise transfer any rights hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Tycho Industries. Any assignment or transfer in violation of this Section will be null and void. 

7.8 Choice of Law.  This agreement will be governed and interpreted in accordance with the laws of the state of Texas without regard to the conflicts of law provisions of any state or jurisdiction. Any action will be brought in the state or federal courts located in Austin, Texas.

7.9 Dispute Resolution.  Any dispute between the parties arising out of this Agreement will be first submitted to senior management of both parties for a good faith attempt at amicable resolution.  If the parties cannot settle the dispute within thirty (30) days after such meeting of senior management, the dispute will be mediated in confidential mediation proceedings by a mutually acceptable mediator to be chosen by Tycho Industries within thirty (30) days after written notice by either party demanding mediation.  Tycho Industries and Customer will equally share costs of the mediation.  The use of any of the above-mentioned procedures will not be construed under the doctrines of laches, waiver, or estoppel to affect the rights of either party adversely.  Nothing in this Section will prevent Tycho Industries from collecting fees due under Section 3, nor will it prevent either party from resorting to judicial proceedings, if (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful; (b) the claim or dispute involves intellectual property rights; or (c) interim relief from a court is necessary to prevent serious and irreparable injury to that party or to others.

7.10 Force Majeure.  Except for Customer’s payment obligations, neither party will be liable to the other party for any delay or failure of Tycho Industries to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of such other party.  Such causes include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

7.11 Independent Contractor.  Tycho Industries is an independent contractor and nothing in this Agreement will be deemed to make Tycho Industries an agent, employee, partner or joint venture of Customer.  Tycho Industries will have no authority to bind, commit, or otherwise obligate Customer in any manner whatsoever.

7.12 Nonsolicitation.  During the term of this Agreement and for a period of two (2) years thereafter, each party agrees not to hire, solicit, nor attempt to solicit, the services of any employee of the other party or Consultants of Tycho Industries without the prior written consent of such other party.  Each party further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee of the other party or former Subcontractor of Tycho Industries for a period of one (1) year from such former employee’s or Consultants last date of service with such other party.  Violation of this provision will entitle aggrieved party to liquidated damages against the other party equal to two hundred percent (200%) of the solicited person’s gross annual compensation.

7.13 Third Parties.  Tycho Industries will have the right to use Consultants in performance of its obligations and services hereunder and, for purposes of this Agreement, all references to Tycho Industries or its employees shall be deemed to include such Consultants.

7.14 No Waiver.  No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

7.15 Severability and Reformation. Each provision of this Agreement is a separately enforceable provision.  If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.

 

The Parties have accepted this Software Subscription Agreement by the acceptance of any Order Form(s) referencing it.

We do not offer refunds for digital products once the order is confirmed and the product is sent.