Software as a Service agreement

PLEASE READ CAREFULLY BEFORE ACCESSING ANY SOFTWARE:

This software as a service agreement (“Agreement”) is a legal agreement between you (“Customer” or “You”) and Tyk Technologies Ltd (“Tyk”, us or we) for the provision of software services. 

IMPORTANT NOTICE TO ALL USERS:

By ticking the checkbox on the Tyk Cloud account creation you agree to and will be bound by the terms of this agreement. By ticking the checkbox on the Tyk Cloud account creation you hereby warrant that you have the authority to act on behalf of the corporate entity that employs you. If you do not agree to the terms of this agreement, we will not provide you with access to our software or services and you must discontinue the ordering process now by clicking on the “reject” button below.  If you do not agree to the terms of this agreement you may not access or use the software or services. 

Tyk is committed in taking steps to ensure privacy rights are protected. as part of Tyk’s compliance programme, Tyk only engages sub-processors who are also committed to protecting privacy rights. you acknowledge and agree that you have obtained the necessary consents in respect of the processing and transfer of any and all data subjects’ personal data by Tyk as part of the services. you are a data controller and Tyk acts as a data processor in respect of personal data which you send to Tyk. you hereby agree to the processing and transfer of data (which may include your customers’ personal data) in accordance with this clause and our terms and conditions.

You should print a copy of this agreement for future reference.

Terms and conditions

1. Definitions and interpretation

1.1 Definitions:

In this agreement, where the context so admits, the words and expressions within this agreement shall be defined in the Schedule attached hereto.

1.2 Interpretation:

In this agreement (including the introduction and schedules) unless the context otherwise requires:

a. reference to a person includes a legal person (such as a limited company) as well as a natural person;

b. clause headings are for convenience only and shall not affect the construction of this agreement;

c. reference to “including” or any similar terms in this agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words;

d. reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation; and

e. words in the singular include the plural and vice versa.

2. Provision of Service

2.1 In order to access the Service, the Customer must provide and register information through Tyk’s website.  The Customer warrants that all information and representations submitted are complete, accurate and truthful. 

2.2 Subject to clauses 2.3 and 15, following the Effective Date and payment of the applicable Fees, Tyk shall provide access to the Service for the Customer (including its Authorised Users) in respect of the Software which it is licensed to access and use under this agreement.

2.3 Tyk reserves the right to refuse connections and/or traffic immediately and without notice in the event that traffic volumes exceed 5 times the per second allowed rate for the Customer’s Service (be it the Free Trial, Proof of Concept, Production, Enterprise, Enterprise HA, Enterprise Global).   

2.4 It is the Customer’s responsibility to ensure it has equipment (of appropriate specification and compatible with the Software and the Service) and internet connection to enable the Customer to connect to the Service. The Customer acknowledges that it is responsible for all charges for internet access (including mobile data usage) charged by its internet service provider.

3. Updates, Availability and Support Services

3.1 The Customer acknowledges that from time to time Tyk may update the Software and/or Services, and that such Tyk Updates may result in changes to the appearance and/or functionality of the Software and/or Services. 

3.2 Where appropriate, and subject to clause 15, Tyk shall make the Service available to its Customers 99.5% of the time (“Service Availability Standard“).  In the event of Tyk’s failure to meet this Service Availability Standard, the Customer’s sole remedy shall be to terminate this agreement with immediate effect. The Customer shall not be entitled to a refund in respect of any Fees. For the avoidance of doubt, the Service Availability Standard does not apply in respect of any support service levels and/or performance under this agreement.

3.3 Tyk may provide support and troubleshooting services in respect of the Software and/or Service (“Support Services“) by way of any channel Tyk selects. However, Tyk shall not be under an obligation to provide Support Services under this agreement and Support Services shall not be supplied in respect of the Free Trial. Time shall not be of the essence in respect of any Support Services. In the event that the Customer requires additional support services, it shall be required to enter a separate support agreement with Tyk (details of which are available on request). 

3.4 Subject to clause 3.4:

a. Tyk may issue modifications to the Software and/or Service by way of a local fix or patch of the Software and/or Service or another suitable solution in the absolute discretion of Tyk. Tyk reserves the right to charge in respect of any modification, new release and/or new version in respect of the Software and/or Service;

b. the Customer acknowledges and agrees that Tyk’s provision of the Support Services (if any) shall be conditional upon the Customer promptly providing all reasonable assistance, information and decision-making as reasonably required by Tyk from time to time, which it agrees to give;

c. Tyk shall not support the Software and/or Service if the Customer fails to maintain the Software and/or Service at Tyk’s specified release level unless otherwise agreed between the parties in writing;

d. Tyk may make changes to the Support Services without notice to the Customer;

e. Tyk shall not provide Support Services where faults arise from misuse or incorrect use of the Software and/or Service, use of the Software and/or Service in combination with equipment or software not designated by Tyk for use with the Software and/or Service, relocation or installation of the Software and/or Service by anyone other than Tyk, operator error and/or otherwise at the reasonable justification of Tyk. 

3.5 The Customer shall not be permitted to use an alternative company to support and/or maintain the Software and/or Service. 

3.6 The Customer shall reimburse any reasonable travel or subsistence expenses incurred by Tyk where such expenses are incurred wholly and exclusively for the purpose of providing on-site support, provided that any request for reimbursement is in the form of an invoice accompanied by receipts.

4. Grant of licence and scope of use

4.1 Subject to full payment of the applicable Fee, and in consideration of the parties’ mutual obligations under this agreement, the Customer is granted a non-transferable, non-exclusive, revocable and limited licence for the Term, and any subsequent Renewal Term, to access and use, and permit Authorised Users to access and use, the Service for the Term and any subsequent Renewal Term in accordance with any other restrictions set out herein and any applicable Front Sheet.  

4.2 Without prejudice to clauses 2.2 and 4.1, the Customer may not sub-license the right to access and/or use any Software or the Service to any third party. The Customer is licensed to access and use only the Software by means of the Service. Except as expressly set out in this agreement, all rights in and to the Software and Service (including the Tyk Content but excluding Customer Data) are reserved to Tyk.

4.3 In relation to scope of use:

a. for the purposes of clause 4.1, use of the Software and/or Service shall be restricted to use of the Software in object code form for any commercial or non-commercial purpose of the Customer;

b. the Customer may not use the Software and/or Service other than as specified in clause without the prior written consent of Tyk, and the Customer acknowledges that additional fees may be payable on any change of use approved by Tyk; and

4.4 The Customer shall:

a. comply with all applicable laws and regulations with respect to its activities under this agreement;

b. obtain and maintain all necessary licenses, consents, and permissions necessary for Tyk to perform its obligations under this agreement;

c. keep a complete and accurate record of the Customer’s disclosure of the Software, Service, and its Authorised Users, and produce such record to Tyk on request from time to time;

d. notify Tyk as soon as it becomes aware of any unauthorised use of the Software and/or Service by any person;

e. pay, for broadening the scope of the licences granted under this agreement to cover the unauthorised use by a third party, an amount equal to the fees which Tyk would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 5.6 from such date to the date of payment;

f. not copy, translate, modify, adapt or create derivative works from the Software and/or Service;

g. not attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that the Customer is permitted to do so under applicable law in circumstances under which Tyk is not lawfully entitled to restrict or prevent the same), including in order to:

1 build a competitive product or service;

2. build a product using similar ideas, features, functions or graphics of the Software and/or Service; or

3. copy any ideas, features, functions or graphics of the Software and/or Software

 

h. not attempt to interfere with the proper working of the Software and/or Service, and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Software, Service or any associated website, computer system, server, router or any other internet-connected device;

i. not introduce any software virus or other malware that may infect or cause damage to the Software and/or Service;

j. not obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, the Software and/or Service; 

k. not to resell the Software or Service to third parties or allow or permit a third party to do so unless permitted by way of a reseller agreement between Tyk and the Customer; 

l. not, and warrants that it shall not (either itself or by way of its Authorised Users), use or upload personal data on the Service unless it has the data subjects’ explicit consent;

m. not use the Software and/or Service:

  1. for military purposes;

2. to upload, store, post, email, transmit or otherwise make available any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Software, as updated by Tyk from time to time (“Prohibited Content“);

3. to impersonate any person or entity or otherwise misrepresent the Customer’s relationship with any person or entity;

4. to engage in any fraudulent activity or further any fraudulent purpose;

5. to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;

6. to “stalk” or otherwise harass another person;

7. to provide false identity information to gain access to or use the Software and/or Service; and/or

8. to collect or store personal data about other users in connection with the prohibited conduct and activities set out in clauses 4.4(m), and shall not permit any Authorised User or other third party to do any of the foregoing.

4.5 The Customer shall not:

a. assign or novate the benefit or burden of this agreement in whole or in part;

b. allow the Software and/or Service to become the subject of any charge, lien or encumbrance; and 

c. deal in any other manner with any or all of its rights and obligations under this agreement, without the prior written consent of Tyk.

4.6 Tyk may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this agreement, provided it gives written notice to the Customer.

4.7 The Customer shall comply with any terms of use, acceptable use policy, privacy policy and/or cookies policy that Tyk may publish online through the Service, each as updated by Tyk from time to time, all of which are incorporated into this agreement by reference.

4.8 The Customer shall be responsible for all access to and use of the Software and/or Services by the Authorised Users. The Customer shall ensure that all Authorised Users are aware of the terms of this agreement, including their obligation to comply with any other user terms applicable to the Service and notified to the Customer. The Customer shall only provide Authorised Users with access to the Service via the access method provided by Tyk and shall not provide access to anyone other than an Authorised User. The Customer shall immediately notify Tyk in the event that the Customer becomes aware of breach of this agreement by an Authorised User.

4.9 The Customer shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to, or created by, the Customer or Authorised User in order for it or its Authorised Users to access or use the Software and/or Service (“ID“). The Customer acknowledges and agrees that the Customer will be solely responsible for all activities that occur under such ID. The Customer shall promptly notify Tyk upon becoming aware of any unauthorised access to or use of the Software and/or Service, and provide all reasonable assistance to Tyk to bring an end to such unauthorised access or use.

4.10 The Customer shall permit Tyk to inspect, audit and have access to any premises (and to the computer equipment located there) at or on which the Software and/or Service is being used, and have access to any records kept in connection with this agreement, for the purposes of ensuring that the Customer is complying with the terms of this agreement, provided that Tyk provides reasonable advance notice to the Customer of such inspections and audits, which shall take place at reasonable times.

4.11 The Customer shall be required, within 7 days of the Effective Date, to appoint a Customer contact who will be available to liaise with Tyk, and respond to queries from Tyk in respect of this agreement within a reasonable timeframe (“System Administrator“). For the duration of this agreement, the Customer shall promptly notify Tyk of any change to the System Administrator (including, without limitation, contact details). In the absence of the Customer’s appointment of a System Administrator, the default appointment shall be the individual who applied for the Service. In the event that the System Administrator fails to respond to Tyk, Tyk reserves the right to charge a reasonable fee for time spent contacting the System Administrator and/or contacting the Customer in respect of its failure to abide by its notification requirement in this clause 4.11.

5. Fees, invoicing and payment

5.1 Subject to clause 5.2, the Customer shall pay the Fee monthly in advance for the Service.

5.2 In respect of the Proof of Concept, Production, Enterprise, Enterprise HA or Enterprise Global Service, the Customer shall pay the Fee  as set out on the Pricing Page.  If the Customer’s number of API calls, or Requests per Second, exceeds the number of permitted API calls for its Selected Tier (“Over Usage“), the Customer shall pay to upgrade to the next tier according to its Over Usage as set out on the Pricing Page.  It is the Customer’s obligation to monitor and ensure it does not exceed the allocated API calls for its Selected Tier. For the avoidance of doubt, the Customer agrees to pay for its Over Usage by way of upgrading automatically to the New Tier subject to clause 5.3. 

5.3 In relation to clause 5.2, in respect of Over Usage, the Customer shall pay (a) the pro rata difference between the Selected Tier and the New Tier for the remainder of the Term or Renewal Term; and (b) the New Tier rate for each subsequent Renewal Term unless and until (i) the agreement is terminated; (ii) a subsequent upgrade occurs, such payment to be made on the next scheduled monthly payment date; or (iii) further Over Usage occurs in relation to the New Tier (whereby the provisions of this clause shall apply accordingly), such payment to be made on the next scheduled monthly payment date.

5.4 Tyk reserves the right to charge the Customer a fee in relation to the Free Trial.

5.5 All sums payable under this agreement are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

5.6 If the Customer fails to make any payment due to Tyk under this agreement by the due date for payment, then, without limiting Tyk’s remedies under clause 13, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

5.7 The Fee is subject to review and increase by Tyk upon 1 calendar months’ notice such increase to take effect on the subsequent calendar month unless otherwise agreed on the Front Sheet.

5.8 The Fee can be paid via credit or debit card, or via any other method mutually agreed between the parties. 

5.9 Fees are payable, in full, without deduction, set off or withholding of any kind. In the event of any dispute as to the amount of an invoice, the Customer shall pay the amount in full pending the resolution of any dispute and Tyk shall make any adjustment due immediately upon such resolution.

6. Confidentiality and publicity

6.1 Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this agreement) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

6.2 Subject to clauses 6.3 and 6.4, either party shall be permitted to make, or permit any person to make, any public announcement concerning this agreement, without the prior written consent of the other parties unless otherwise agreed on the Front Sheet (which shall not include the commercial terms, and Fees contained within this agreement and not on Tyk’s website).

6.3 The Customer shall display the “Powered by Tyk” logo and/or the Tyk logo on the Tyk developer portal.

6.4 Tyk reserves the right to use descriptions and/or examples of the Customer’s use of the Software and/or Services in its press releases, marketing channels and any other publicity materials.  Tyk may also reference and link to the Customer’s website.

7. Export 

Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval, without first obtaining such licence or approval.

8. Intellectual Property Rights

8.1 Nothing in this agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.

8.2 Tyk and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Tyk’s brands, trade marks and logos, the Software and the Service (including the Tyk Content but excluding Customer Data). Except as expressly permitted by this agreement, the Customer may not use any of Tyk’s Intellectual Property Rights without Tyk’s prior written consent.

8.3 The Customer acknowledges that it may create Intellectual Property Rights by improving or suggesting improvements of Software, Services and/or Support Services to Tyk.  Any and all improvements to the Software or Services and/or Support Services suggested by the Customer and developed by Tyk which result in the creation of Intellectual Property Rights shall be owned by Tyk.  The Customer hereby assigns any and all rights to such Intellectual Property Rights in respect of the Software, Services and/or Support Services to Tyk and waives its moral rights in respect thereof. The Customer shall execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this clause 8.3.

8.4 The Customer shall promptly bring to the attention of Tyk any improper or wrongful use of any Intellectual Property Rights of Tyk which comes to the Customer’s notice. The Customer shall assist Tyk in taking all steps to defend Tyk’s Intellectual Property Rights, but not institute legal proceedings of its own accord.

8.5 The Customer and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data. The Customer grants Tyk, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Customer Data only to such extent as is necessary to enable Tyk to provide the Service and to perform its obligations under this agreement. 

8.6 The Customer warrants that the Customer owns or has obtained a license in respect of the Customer Data and is otherwise entitled to grant the license in clause 8.5. If this agreement is terminated, the licence granted to Tyk in clause 8.5 will automatically terminate.

9. Data protection

9.1 The following definitions shall apply in this clause: 

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Data Protection Legislation: the UK Data Protection Legislation and other European Union Legislation relating to personal data and all other legislation and regulatory requirements in force form time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136EC) and the Privacy and Communications Regulations 2003 (SI 2003/2426) as amended).

9.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

9.3 The parties acknowledge that where Tyk processes any personal data on behalf of the Customer when performing its obligations under this Agreement, the Customer is the controller and Tyk is the processor for the purposes of the Data Protection Legislation. 

9.4 Without prejudice to the generality of clause 9.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Tyk (or collection of the personal data by Tyk on the Customer’s) for the duration and purposes of this agreement so that Tyk may lawfully use, process and transfer the personal data in accordance with this agreement on Customer’s behalf;  

9.5 Without prejudice to the generality of clause 9.2, Tyk shall, in relation to any personal data processed in connection with the performance by Tyk of its obligations under this agreement: 

a. Process that personal data only on the documented written instructions of the Customer unless Tyk is required by the laws of any member of the European Union or by the laws of the European Union applicable to Tyk and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where Tyk is relying on Applicable Laws as the basis for processing personal data, Tyk shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Tyk from so notifying the Customer; 

b. Ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

c. Not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

(i) The Customer or Tyk has provided appropriate safeguards in relation to the transfer;

(ii) The data subject has enforceable rights and effective legal remedies;

(iii) Tyk complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv) Tyk complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

d. Assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

e. Notify the Customer without undue delay on becoming aware of a personal data breach;

f. At the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and

g. Maintain complete and accurate records and information to demonstrate its compliance with this clause 9 and immediately inform the Customer if, in the opinion of Tyk, an instruction infringes the Data Protection Legislation.

9.6 Either party may, at any time on not less than thirty (30) days’ notice, revise this clause 9 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement). 

9.7 Without prejudice to the preceding provisions of this clause 9, Tyk shall provide to the Customer on request a copy of all personal data held by it pursuant to this agreement, in the format and on the media reasonably specified by the Customer, and shall promptly inform the Customer if any such data is lost or destroyed or becomes damaged, corrupted, or unusable.  The Customer will restore such data at its own expense.

9.8 Each party shall obtain and maintain all appropriate registrations required under the Data Protection Legislation in order to allow that party to perform its obligations under this agreement.

9.9 The Customer acknowledges and agrees that Tyk may use aggregate data derived from Customer’s use of the Software and Services hereunder provided that Tyk has anonymized such data. Tyk may use in its marketing and advertising the total number of users, total number of stored claim records, total transaction volumes, and other aggregate statistics to attract new customers.

10. Supplier Warranties

10.1 Tyk warrants that:

a. it has the right to enter into this agreement and to provide the Service as contemplated by this agreement; and

b. the Software and Service shall, under normal operating conditions, substantially conform to the functionality described in the documents mentioned on the Front Sheet, or in the absence of the Front Sheet, shall under normal operating conditions, substantially conform to the functionality described in the documentation on Tyk’s website (which may be updated from time to time).

10.2 If any of the warranties in clause 10.1 is breached, the Customer must notify Tyk as soon as possible. The Customer must give Tyk a reasonable time to fix the problem, including (at Tyk’s discretion) by making available a corrected version of the Software and/or Service (as the case may be) or a reasonable way to work around the problem that is not materially detrimental to the Customer and/or by re-performing any relevant services. This will be done without any additional charge to the Customer. If Tyk is able to do this within a reasonable time, this shall be the Customer’s sole and exclusive remedy in relation to such breach and Tyk will, subject to clause 12, have no other obligation or liability in relation to such breach.

10.3 Tyk does not warrant that the use of the Software and/or Service will be uninterrupted or error-free.

10.4 Tyk does not control the content posted to or via the Service and, in particular, does not control or actively monitor the Customer Data and, as such, Tyk does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data. In the event of suspected breach of clause 8 or clause 9, Tyk shall have the right to remove Customer Data from the Service without the need to consult the Customer.

10.5 The Customer accepts responsibility for the selection of the Software and Service to achieve its intended results and acknowledges that the Software and/or Service have not been developed to meet the individual requirements of the Customer.

10.6 The Customer acknowledges that any Open-Source Software provided by Tyk is provided “as is” and expressly subject to the disclaimer in clause 10.7.

10.7 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

11. Indemnities

11.1 The Customer shall indemnify Tyk and its affiliates against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Tyk arising out of or in connection with:

a. any claim that the Customer Data infringes a third party’s intellectual property rights;

b. any claim that the Customer Data has been obtained without the data subject’s express consent and/or in breach of Data Protection Legislation; or

c. any claim by a third party as a result of the Customer or its Authorised User’s use of the Software and/or Services;

each a “Tyk Claim“.

11.2 Subject to clause 12, Tyk shall indemnify the Customer against all damages and legal costs finally awarded against the Customer by a court of competent jurisdiction and/or amounts paid by the Customer further to a final settlement approved by Tyk, together with associated legal fees reasonably incurred by the Customer, as a result of any claim by a third party that the access and use, in accordance with this agreement, by the Customer of the Software or Services, excluding Open-Source Software, infringes the Intellectual Property Rights of any third party (“Customer Claim“).  This indemnity shall only apply to Customer Claims supported by a court judgement.  It shall not apply in respect of alleged Customer Claims.  For the avoidance of doubt, clause 11.2 shall not apply where the Customer Claim in question is attributable to possession or use of the Software or Services (or any part thereof) by the Customer other than in accordance with the terms of this agreement, use of the Software and/or Service in combination with any hardware or software not supplied or specified by Tyk if the infringement would have been avoided by the use of the Software or Services not so combined, or use of a non-current release of the Software or Services.

11.3 For the purpose of this clause 11.3, a Tyk Claim and a Customer Claim shall each be considered as a “Claim“. If any third party makes a Claim, or notifies an intention to make a Claim against a party, the indemnitor’s obligations are conditional on the indemnitee:

a. as soon as reasonably practicable, giving written notice of the Claim to the indemnitee, specifying the nature of the Claim in reasonable detail;

b. not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the indemnitor (such consent not to be unreasonably conditioned, withheld or delayed); and

c. giving the indemnitor and its professional advisers reasonable access at reasonable times (on reasonable prior notice) to premises, officers, directors, employees, agents, representatives or advisers for the purposes of assessing the Claim.

11.4 If any Customer Claim is made, or in Tyk’s reasonable opinion a claim is likely to be made, against the Customer, Tyk may at its sole option and expense:

a. procure for the Customer the right to continue to use the Software and/or Services (or any part thereof) in accordance with the terms of this agreement;

b. modify the Software and/or Services so that it ceases to be infringing;

c. replace the Software and/or Services with non-infringing software; or

d. terminate this agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software and/or Services to the date of termination),

provided that if Tyk modifies or replaces the Software and/or Services, the modified or replacement Software and/or Services must comply with the warranties contained in clause 10 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this agreement been references to the date on which such modification or replacement was made.

11.5 Notwithstanding any other provision in this agreement, clause 11.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any third-party software.

11.6 Clauses 11.2-11.4 constitute the Customer’s exclusive remedy and Tyk’s only liability in respect of Customer Claims and, for the avoidance of doubt, is subject to clause 12.1.

12. Limits of liability

12.1 Except as expressly stated in clause 12.2:

a.Tyk shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

1 special damage even if Tyk was aware of the circumstances in which such special damage could arise;

2. loss of profits;

3. loss of anticipated savings;

4. loss of business opportunity;

5. loss of goodwill; and/or

6. loss or corruption of data.

 

b. Tyk shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:

  1. the use of the Software and/or Service except for its normal intended purpose;
  2. any adaptation or modification of any Software and/or Service, or integration or combination with any other equipment, software, product or material not supplied by Tyk, in each case carried out by anyone other than the Tyk or without Tyk’s express written consent; 
  3. any defect arising in the Software and/or Service as a result of misuse, wilful damage, negligence on the part of anyone other than Tyk, abnormal operating conditions or any failure by the Customer to follow any instructions of Tyk as to use;
  4. the compliance by Tyk with any design, specification or instructions provided by the Customer or on the Customer’s behalf; or
  5. the continued use of a version or release of the Software and/or Service after Tyk has made an alternative version or release of the Software and/or Service available to the Customer, to the extent that any claim in respect of which Tyk would otherwise be obliged, under this agreement, to indemnify would have been avoided by the use of such alternative version or release;
  6. the Customer or a third party (other than a subcontractor or representative of the Supplier) in respect of loss or damage to Customer Data.

c. the total liability of Tyk, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed:

  1. an amount equal to the Fee paid to Tyk in the 12-month period immediately preceding the first incident giving raise to the loss; or
  2. for an incident in the first 12 months of this agreement, an amount equal to the paid and projected Fees for that period;

d. the Customer agrees that, in entering into this agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this agreement) that it shall have no remedy in respect of such representations and (in either case) Tyk shall have no liability in any circumstances otherwise than in accordance with the express terms of this agreement.

12.2 The exclusions in clause 12.1 shall apply to the fullest extent permissible at law, but Tyk does not exclude liability for:

a. death or personal injury caused by the negligence of Tyk, its officers, employees, contractors or agents;

b. fraud or fraudulent misrepresentation;

c. to pay sums properly due and owing to the Customer (if any) in the normal course of performance of this agreement; or

d. any other liability which may not be excluded by law.

12.3 All dates supplied by Tyk for the delivery of the Software and/or Service shall be treated as approximate only. Tyk shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

12.4 All references to “Tyk” in this clause 12 only shall, for the purposes of this clause, be treated as including all employees, subcontractors and suppliers of Tyk and its affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

13. Term and termination

13.1 Subject to the Front Sheet (if any), this agreement shall commence on the Effective Date and shall, unless sooner terminated in accordance with its terms, continue for the Term and thereafter renew automatically for successive terms of equivalent duration (each a “Renewal Term“) unless and until terminated by either party giving at least 14 days’ written notice to that effect (such notice to expire at the end of the Term or any subsequent Renewal Term only).

13.2 Either party may terminate this agreement, at any time, by giving the other written notice if:

a. the other materially breaches any term of this agreement and it is not possible to remedy that breach;

b. the other materially breaches any term of this agreement and it is possible to remedy that breach, but the other fails to do so within 7 days of being requested in writing to do so; or

c. the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed,  or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

13.3 Without prejudice to clause 13.2, Tyk may, in addition, and without liability, terminate this agreement, or alternatively, may suspend access to and use of any Software and/or the Service, by giving the Customer written notice if:

a. any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;

b. any provision of clause 4 is breached; 

c. any provision of clause 9 is breached or suspected of being breached; and/or

d. the Customer is in persistent or repeated breach of any of its obligations under this agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).

13.4 In relation to suspensions under clause 13.3(a), access to the Service will be restored promptly after Tyk receives payment in full and cleared funds.

13.5 Fees shall remain payable during any period of suspension notwithstanding that the Customer may not have access to the Software and/or Service.

13.6 Customer agrees that Tyk at its sole discretion, has the right (but not the obligation) to delete or deactivate Customer’s account, block Customer’s email or IP address, or otherwise terminate Customer’s access to or use of the Software and/or Service (or any part thereof), immediately and without notice, and remove and discard any Customer Data, for any reason, including, without limitation, if Tyk believes that Customer has acted inconsistently with this agreement. Further, Customer agrees that Tyk shall not be liable to Customer or any third-party for any termination of such access to the Software and/or Services. The Customer agrees not to attempt to use the Software or Services after termination.

14. Consequences of termination

14.1 The Customer acknowledges that, due to the nature of the Service, and the duration of the Term and any subsequent Renewal Term, it shall not be entitled to a refund (in full or in part) in respect of the Service for the Term and any subsequent Renewal Term (unless otherwise agreed on a Front Sheet).

14.2 Upon termination of this agreement for any reason:

a. the Customer shall immediately cease to access, and discontinue all use of, the Software and Service; 

b. all licenses granted under this agreement shall terminate;

c. all amounts payable to Tyk by the Customer shall become immediately due and owing. For the avoidance of doubt, no refund of fees paid in advance shall be due in respect of any unexpired portion of the then-current term; and

d. Tyk may destroy or otherwise dispose of any Customer Data in its possession on termination.

14.3 If the Customer gives notice to terminate this agreement as per clause 13, Tyk shall retain Customer Data for a period of 1 month (the “Cooling-Off Period”) after which it will delete any Customer Data. The Customer may elect to waive this Cooling-Off Period and request for its data to be deleted immediately upon termination if it so chooses. 

14.4 If so requested by Tyk at any time by notice in writing to the Customer, the Customer shall promptly:

a. destroy or return to Tyk all documents and materials (and any copies) containing, reflecting, incorporating or based on Tyk’s confidential information including without limitation the Services;

b. erase all confidential information from its computer and communications systems and devices used by it (including those of any group company), or which is stored in electronic form; 

c. erase all the confidential information which is stored in electronic form on systems and data storage services provided by third parties; and

d. certify in writing to Tyk that it has complied with the requirements of this clause 14.3.

14.5 The termination of this agreement for any reason will not affect:

a. any accrued rights or liabilities which either party may have by the time termination takes effect; or

b. the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination.

15. Force majeure

Neither party shall have any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from any event beyond the reasonable control of that party (“Force Majeure Event“). The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than 3 calendar months, either party may terminate this agreement by written notice to the other party.

16. General

16.1 Tyk reserves the right to modify the Software, the Services, any end user licence agreement and/or privacy policy and to impose new or additional terms or conditions on the Customer.  Such modifications and additional terms will be communicated to the Customer, and, if accepted, will be effective immediately and will be incorporated into this Agreement.  In the event that the Customer refuses to accept such changes, Tyk will have the right to terminate this agreement.  If Tyk is required to make these changes by law, these changes will apply automatically in respect of this agreement.

16.2 All notices and consents relating to this agreement (but excluding any proceedings or other documents in any legal action) must be in writing. Notices must be sent to the address of the recipient set out in the Front Sheet or otherwise notified by the relevant party in accordance with this agreement. Notices shall be sent by hand, by first class recorded delivery or registered post or other form of certified or registered mail (and sent by air mail if posted to or from a place outside the United Kingdom), or email and shall be treated as having been delivered:

a. if sent by hand, when delivered; 

b. if sent by certified or registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting); and

c. if sent by email, at close of business on the next working day after delivery to the recipient of the email. 

This clause does not apply to the service of any proceedings or other documents in any legal action.

16.3 Unless the parties expressly agree otherwise in writing, if a party:

a. fails to exercise or delays exercising or only exercises partially any right or remedy provided under this agreement or by law; or

b. agrees not to exercise or to delay exercising any right or remedy provided under this agreement or by law;

then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.

16.4 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

16.5 If any provision or part provision of this agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this agreement or this agreement as a whole. If any provision or part provision of this agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it enforceable.

16.6 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

16.7 All variations to this agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.

16.8 Except to the extent that this agreement expressly provides otherwise, nothing in this agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party.  Neither party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.

16.9 A person who is not a party to this agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

16.10 Each party acknowledges that, in entering into this agreement and the documents referred to in it, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents (“Representation“).

16.11 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

16.12 This agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this agreement or its subject matter, but Tyk is also entitled to apply to any court worldwide for injunctive or other remedies to protect or enforce its Intellectual Property Rights.

Schedule 

The words and expressions contained within the agreement shall have the following meanings:

Authorised User: employees, staff, contractors to the Customer, and any other persons working with or on behalf of the Customer to access the services provided that, in each case, the person concerned in accessing the Service does so exclusively on the Customer’s behalf and with the Customer’s express permission subject to clause 4.2;

Cloud Service: the Free Trial Service, Proof of Concept Service, Production Service, Enterprise Service, Enterprise HA Service and the Enterprise Global Service, each of which shall be considered a “Cloud Service” whereby the Customer uses an ID (as defined) to login to Tyk’s Software allowing the Customer to programatically interact with the Customer’s APIs, analytics, policies and keys;

Customer Data: all data, information and material input or uploaded to any Software or transmitted through the Service by the Customer and/or any Authorised User;

Effective Date: the date on the Front Sheet, or in respect of the Community Cloud Service, the date which the Customer first accesses the Software and/or Services, or creates an ID (as defined) by way of Tyk’s website (whichever is the earlier);

Enterprise Service: access to the Service on a bespoke basis as agreed between the parties in writing;

Enterprise Service Fee: as defined on the Front Sheet;

Enterprise Service Term: a term of 1 month unless otherwise stated on the Front Sheet;

Enterprise Global Service: access to the Service on a bespoke basis as agreed between the parties in writing;

Enterprise Global Service Fee: as defined on the Front Sheet;

Enterprise Global Service Term: a term of 1 month unless otherwise stated on the Front Sheet;

Enterprise HA Service: access to the Cloud Service which shall be limited to an amount per calendar day and an allowed rate per second as set out in a tiered structure on the Front Sheet (such tier as selected by the Customer);

Enterprise HA Service Fee: as defined on the Front Sheet;

Enterprise HA Service Term: a term of 1 month unless otherwise stated on the Front Sheet;

Fee(s): in respect of the Proof of Concept Service, Production Service, Enterprise Service, Enterprise HA Service and Enterprise Global Service, the Proof of Concept Service Fee, the Production Service Fee, the Enterprise Service Fee, the Enterprise HA Service Fee and the Enterprise Global Service Fee respectively, as may be further defined on Front Sheet and subject to clause 5;

Free Trial Service: access to the Services which shall be limited to those features, services and support defined on the pricing page for the duration of the Free Trial Service Term;

Free Trial Service Fee: a fee of £0 per month and consideration of a mutual exchange of promises subject to clause 5.4 unless otherwise stated on the Front Sheet;

Free Trial Service Term: a term of 14 calendar days unless stated on the Front Sheet;

Front Sheet: additional terms agreed between the parties in Tyk’s standard format and defined as a “Front Sheet”;

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

Open-Source Software: open-source software as defined by the Open Source Initiative or the Free Software Foundation which shall include Tyk Open-Source Software;

Premises: the environment from which the Customer is permitted to access the Software and/or Service which shall be limited to one single logical group;

Production Service: access to the Cloud Service which shall be limited to an amount per calendar day and an allowed rate per second as set out in a tiered structure on the Front Sheet (such tier as selected by the Customer);

Production Service Fee: defined on the Front Sheet according to the Customer’s Selected Tier;

Production Service Term: a term of 1 month unless otherwise stated on the Front Sheet;

Proof of Concept Service: access to the Cloud Service which shall be limited to an amount per calendar day and an allowed rate per second as set out in a tiered structure on the Front Sheet (such tier as selected by the Customer); 

Proof of Concept Service Fee: defined on the Front Sheet according to the Customer’s Selected Tier;

Proof of Concept Service Term: a term of 1 month unless otherwise stated on the Front Sheet;

Service: the Cloud Service to be provided by Tyk consisting of provision of access to the Software on a software as a service (SaaS) basis and as may be further defined on a Front Sheet;

Software: any software owned by or licensed to Tyk and which forms part of the Service;

Term: in respect of the Proof of Concept Service, Production Service, Enterprise Service, Enterprise HA Service, Enterprise Global Service,  then the Proof of Concept Service Term, Production Service Term, Enterprise Service, Enterprise HA Service Term or the Enterprise Global Service Term, respectively unless otherwise defined on Front Sheet;

Tyk Content: all data, information and material owned by or licensed to Tyk and comprised within any Software and/or Service, excluding Customer Data;

Tyk Gateway: a network node connecting two networks that use different protocols;

Tyk Open-Source Software: Tyk software that has been developed for open-source purposes and is provided to the general public without charge and subject to additional open source license terms; and

Tyk Updates: new version of, and updates to, the Software and/or Services, whether for the purpose of fixing an error, bug or other issue in the Software and/or Service or enhancing the functionality in the Software and/or Services.