Cloud Services Agreement

Recitals
1. Definitions
2. Scope of Agreement
3. General Obligations
4. Your Duties
5. Pricing and Terms of Payment
6. Confidentiality
7. Maintenance and Support
8. Termination
9. Consequences of Termination
10. Ownership of IP Rights
11. Limited Warranty and Disclaimers
12. Limitation of Liability and Indemnification
13. Miscellaneous Provisions
14. Governing Law and Forum
Exhibit A: Managed DocProStar
Exhibit B: TCG Cloud API
Exhibit C: Data Processing Agreement
Exhibit D: Cloud Service Maintenance and Support Agreement

Recitals

This TCG Cloud Service Agreement (“Agreement”) governs Your use of TCG’s Service. “You” and “Your” refer to any person who uses the Service. If Your organization has authorized or otherwise permits You to use the Service for its benefit, “You” also includes Your organization. The term “use” includes accessing, downloading, or utilizing any component of the Service.

If you accept this Agreement on behalf of an organization, you represent that you have the authority to bind your organization to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, do not sign this Agreement and do not use the Service.

Definitions
1. "TCG" means the following legal entity with whom You have entered into this Agreement: _____________________, a company duly incorporated under the laws of _______________. This law is applicable to this Agreement.
2. "Account" means a collection of information associated with a particular Authorized User of the Service. Each Account comprises a username, user password, user contact data, and defines various settings for use of Service. An "Account" does not include Uploaded Data.
3. "Affiliate" means any corporation, company or other legal entity that is under the Control of, under common Control with or Controls one of the parties to this Agreement, but such entity constitutes an Affiliate only so long as such Control exists. "Control" and its variants "Controlled by" or "under common Control with" means having the legal, beneficial or equitable ownership of more than fifty percent (50%) of outstanding voting securities or partnership interests of the entity, or otherwise having the power to elect the directors, or direct or cause the direction of the entity's management and policies, whether by voting power, contract, or otherwise.
4. "Applicable Law" means all applicable local, state, national or international laws, statutes, ordinances, regulations, rules, orders, treaties, directives and other requirements of any governmental authority.
5. "Authorized User" means any of Your employees, representatives, consultants, contractors or agents whom You have authorized to use the Service on Your behalf and who has been supplied a unique username and user password by You, or by TCG or a Partner at Your request.
6. "Confidential Information" means any information which has been marked, designated or otherwise identified as confidential by either Party in writing or that ought reasonably to be considered as confidential (however it is conveyed or on whatever media it is stored) including information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person, trade secrets, and know-how of either Party and all personal data and sensitive personal data within the meaning of the DPA. TCG's Confidential Information shall also include information relating to TCG's technology, any and all technical or commercial information specifications, drawings, designs, know-how or otherwise, software, data and experience, memoranda, models, prototypes, equipment or other document, material or thing, whether of scientific, technical, commercial, financial or other nature, whether or not marked, designated, or otherwise identified as "confidential", obtained by any means whatsoever written, oral, visual, electronic, or in any other format whether disclosed prior to this Agreement or not. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement or other breach of a legal obligation; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party's Confidential Information.
7. "Data Processing Addendum" or "DPA" means the respective Data Processing Addendum that is appliable to You as provided by TCG. In the event of conflict between the Agreement and the relevant DPA, the DPA shall prevail. If you have concluded the Agreement with TCG Informatik AG (Switzerland) the DPA in the Exhibit C is part of this Agreement.
8. "Data Processing Location" means geographical location where Uploaded Data is Processed and stored.
9. "Documentation" means the user manuals and other materials provided by TCG relating to the functionality or operation of the Service, excluding Service Marketing Materials.
10. "End User" means a person or legal entity using Your Solution in accordance with the End User Agreement.
11. "End Of Life ("EoL")" means that the Service or its individual features are no longer supported by TCG and may be shut down anytime effective immediately on or after the EoL date without further notice by TCG.
12. "Exhibit" means a certain appendix to this Agreement, specifying the particular Services and Service specific terms. Each Exhibit is an integral part of this Agreement, the terms and conditions of which shall prevail over this Agreement to the extent of any discrepancy and inconsistency between this Agreement and the relevant Exhibit.
13. "Intellectual Property Right(s)" means any and all of the following anywhere in the world: (i) works of authorship, copyrights therein and derivative works thereof, moral rights, and mask-works; (ii) trademarks, service marks, trade names, business names, trade dress, logos, symbols, emblems, designs, and the like and associated goodwill; (iii) confidential, proprietary, and trade secret business and technical information; (iv) ideas, know-how, designs, concepts, techniques, inventions, discoveries, improvements, systems, methods, algorithms, databases and database rights and industrial property, whether or not patentable, (iv) patents, patent applications, continuations, continuations-in-part, divisionals, reissues, re-examinations, topography rights and utility models; (v) internet domain names, and (vi) all other intellectual, proprietary and industrial property rights, whether arising by operation of law, contract, statute, license, or otherwise under any jurisdiction, including, but not limited to, all applications, registrations, renewals, extensions, or the like for any of the foregoing.
14. "Quote" means an ordering document specifying the Services to be provided to You hereunder that is entered into between You and TCG, and includes a description of what is being ordered, Service specifications, quantity, price, Service levels, payment terms, Subscription Term and other terms and conditions. Once signed or otherwise accepted by both You and TCG, this Agreement shall be incorporated by reference in the Quote. In case of any discrepancy, the Quote shall prevail over this Agreement and the relevant Exhibit.
15. "Partner" means an entity or individual who is authorized by TCG to market, promote or resell the Service on behalf of TCG.
16. "Personal Data" refers to the definition within the DPA that applies to You.
17. "Representative" means either Party's employees, contractors, suppliers, agents, Affiliates, or other representatives.
18. "Service" means the TCG software as a service product made available to You under this Agreement as identified in the relevant Exhibit.
19. "Service Software" means the software that operates or enables the Service or its component parts.
20. "Service Marketing Material" means picture samples, demo samples, user's guides, notification texts and other marketing materials made available to You.
21. "Maintenance and Support Terms", or "M&S Terms" mean TCG's terms and conditions for providing technical support and maintenance services to You which are defined within the Agreement in Exhibit D to this Agreement. The Agreement in Exhibit D constitutes an integral part of this Agreement. In case of contradiction between the terms of Exhibit D and this Agreement, the terms of the Exhibit D shall prevail.
22. "Subscription" means Your commitment to make payment(s) to TCG for use of the Service during the Subscription Term according to the Subscription Fees stated in the applicable Quote; and in consideration of such payment, TCG's commitment to make the Service and technical support available to You during the Subscription Term under the terms herein.
23. "Subscription Fee" means the fees (as specified in each invoice or otherwise) payable by You to TCG for the use of the Service.
24. "Subscription Term" means the time period during which You are entitled to use the Services and for which You have committed to pay the applicable Subscription Fees.
25. "Tenant" means one or more Authorized Users, each using the Services on Your behalf and on Your data.
26. "Third Party Software" means certain software developed and owned by third parties that may be used from time to time by TCG in connection with the Services.
27. "Uploaded Data" means any data, information, or material uploaded by You, Authorized Users or End Users to the Service.
28. "Volume Unit" means a document transaction, document, page, images or other unit of information that is processed using the Service. Uploaded Data may be measured in Volume Units.
Scope of Agreement
1. Scope. Subject to the terms of this Agreement and Exhibit A or B (depending which one applies to you as agreed among the parties), You may purchase and TCG will provide You with access to the Service(s) described in the Exhibit. Any right that TCG grants hereunder is revocable or terminable in accordance with this Agreement. TCG reserves all rights, including without limitation rights in its Confidential Information and Intellectual Property Rights, that TCG does not expressly and unambiguously grant to You hereunder.
2. Modifications. TCG may add or remove features to or from the Service or modify the design of existing features of the Service, or the Documentation, at any time, at its sole discretion, without notice to You. If TCG believes in good faith that the applicable change(s) may have a material impact on Your use of the Service, TCG shall send notification thereof to You at Your e-mail address at least ten (10) days prior to implementation of the proposed change(s).
3. Service Management. In order to manage the efficient and stable operation of the Service, if Your use of the Service could cause partial or complete interruption of the Service, then TCG may impose reasonable limits on Your use of the Service. Such reasonable limits include maximum size of a file uploaded to the Service, maximum download and upload rates, connection timeouts, limitation of API access rates, full or partial termination of Service provision to You, or other limitations described in the Documentation.
4. Resources. TCG may determine at its sole discretion the appropriate resources that it will use to provide the Service, on an as-available basis. TCG sometimes utilizes the services or products of a limited number of third parties, whether companies or individual subcontractors as well as TCG Affiliates (“Approved Contractors”) which have been determined by TCG to meet its standards. To meet Your needs most effectively, TCG may assign or subcontract all or part of TCG’s performance obligations and rights towards the provision of any portion of the Service under this Agreement to an Approved Contractor.
General Obligations
1. General Restrictions. To the fullest extent permissible under Applicable Law and in addition to other restrictions provided in this Agreement, You agree that You will not, and will not permit or authorize third parties, other than as expressly permitted in the respective Exhibit, directly or indirectly, to:
  1. use the Service for any purpose or activity prohibited under Applicable Law;
  2. rent, lease, sell, assign or transfer the Service or any Service Software or software-as-a-service related to or provided with the Service;
  3. sublicense or distribute the Service except when permitted to sublicense and/or resell as integrated with Your Solution;
  4. probe, scan or test the vulnerability of the Service;
  5. interfere with or disrupt the integrity or performance of, circumvent or disable any technical features or security measures of the Service or any Service Software or software-as-a-service related to or provided with the Service;
  6. monitor data or traffic on the Service, unless such data or traffic is generated by You or for You;
  7. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service, such as a denial-of-service attack (DoS) or distributed denial-of-service (DDoS) attack;
  8. use the Service in any way not described in the Documentation, including but not limited to use the Services or any Service Software or software-as-a-service related to or provided with the Service for timesharing purposes or otherwise for the benefit of any person or entity other than You or End Users;
  9. reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any Service Software or software-as-a-service, Documentation, or data related to or provided with the Service;
  10. impersonate any person or entity, falsely state or otherwise misrepresent Your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information, in connection with the Service;
  11. transmit to TCG or its service providers, or transmit via the Service, any software or materials that contain any viruses, worms, Trojan horses, logic bombs, defects, or other material which is malicious, destructive or technologically harmful;
  12. modify, translate, enhance, correct errors in, or create derivative works based on the Service or any Service Software or software-as-a-service related to or provided with the Service or Service Marketing Materials without TCG’s prior written approval;
  13. attempt to gain unauthorized access to the Service or any Service Software or software-as-a-service related to or provided with the Service or to data that You are not authorized to access under this Agreement or make it possible for any person not entitled to use the Services to access and/or use the Service or any Service Software related to or provided with the Service;
  14. distribute, rent or sublicense Your rights or obligations hereunder, or otherwise embed, bundle or otherwise incorporate the Service with other products or services for third parties (including without limitation Your Affiliates, distributors, and End Users), without prior written consent from TCG;
  15. use the Service to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of a third party's privacy rights.
Your Duties
1. You shall:
  1. at Your expense, purchase or lease, and thereafter use and maintain, the information technology, including computer systems, that meets the requirements necessary to connect to the Service, as such requirements may be modified by TCG from time to time;
  2. access and use the Service in compliance with, and shall cause Authorized Users to use the Service in compliance with: the (i) standards, protocols and restrictions imposed by TCG in writing; (ii) this Agreement; and (iii) all Applicable Laws;
  3. be responsible and liable for all acts and omissions of Authorized Users and any breach of the terms of the Agreement.
2. Actions by Authorized Users. You are solely responsible and liable for all actions and omissions of all Authorized Users and must take all appropriate measures to ensure that Authorized Users only add or remove subscriptions to the Service, make payments, request Service functionality, or engage in any other activity in connection with the Service with Your prior consent. You are solely responsible and liable for maintaining the confidentiality of all usernames and passwords and for any unauthorized use of any Authorized User’s username or password.
3. Unauthorized Use. You shall: (a) immediately notify TCG of any unauthorized use of any username, password or other Account information relating to the Account or any other known or suspected breach of security related to the Service; and (b) report to TCG immediately and use Your best efforts to immediately stop any unauthorized use, copying or distribution of any part of the Service.
4. You shall report a change of Control within the structure of Your legal entity without delay to TCG.
5. Trade Restrictions. You acknowledge that TCG's Service, Documentation, related software and any derivatives thereof are subject to the export control and sanctions laws and regulations of any jurisdiction that may prohibit or restrict export, reexport, transfer to, access or use by certain restricted persons or in, from or involving certain restricted countries or territories, including but not limited to the US Export Administration Regulations, International Traffic in Arms Regulations and the Office of Foreign Assets Control regulations (together, “Trade Restrictions”). You shall comply with all applicable Trade Restrictions in performance of this Agreement. You represent that You are not a Restricted Party. “Restricted Party” means any person or entity that is subject to sanctions as part of international trade restrictions by any country.
6. Examples of such a Restricted Party is a person or entity (i) located or organized in a country or territory subject to comprehensive US, EU, Swiss, or multilateral sanctions ("Sanctioned Territory"), (ii) owned or controlled by or acting on behalf of the government of a Sanctioned Territory or Venezuela; (iii) an entity organized in or a resident of a Sanctioned Territory, (iv) identified on any list of restricted parties targeted under US, EU or multilateral sanctions, including, but not limited to, the US Department of the Treasury, Office of Foreign Assets Control’s (“OFAC” ) List of Specially Designated Nationals and Other Blocked Persons, the OFAC Sectoral Sanctions List, the US State Department's Non-proliferation Sanctions and other lists, the U.S. Commerce Department’s Entity List or Denied Persons List, the consolidated list of persons, groups and entities subject to EU financial sanctions from time to time; or (v) owned or controlled by, or acting on behalf of, any of the foregoing. You shall immediately notify TCG in case you become a Restricted Party over the course of the duration of the contract. You shall not and shall not permit any Authorized User to access, use, or make the Service available to or by any Restricted Party or to, from, or in connection with any Sanctioned Territory. You shall not host technical data or software controlled for export, reexport, or in-country transfer under Trade Restrictions on the Service without first receiving explicit consent from TCG. You explicitly agree and acknowledge that TCG's ability to perform under this Agreement is subject to TCG’s compliance with Trade Restrictions. You agree that any refusal or failure by TCG to perform its obligations hereunder on account of compliance with Trade Restrictions will not constitute a breach of any obligation under this Agreement and hereby waives any and all claims against TCG for any legal recourse, including, but not limited to, injunctive or declarative relief, loss, cost or expense, including consequential damages, that You may incur or be subject to by virtue of such refusal or cancellation. You shall not do or omit to do anything that may cause TCG, in TCG’s reasonable judgment, to be in breach of applicable Trade Restrictions, and shall protect, indemnify, and hold harmless TCG from any claim, damages, liability, costs, fees and expenses incurred by TCG as a result of the failure or omission of You to comply with such Trade Restrictions.
7. Failure by You to comply with this Section shall constitute a material breach of this Agreement.
8. Part of this contract is the DPA provided by TCG of the corresponding jurisdiction that applies to this Agreement (see Exhibit C).
9. Tenant and Accounts Deletion. TCG may choose to delete Your inactive Tenant and your Account(s) if Your Subscription has expired and You have not acquired a new Subscription within at least 3 (three) months.
Pricing and Terms of Payment
1. Prepayments. You are required to pay a prepayment(s) to TCG as specified in the Quote before TCG provides the Service to You. The commencement of TCG’s obligations under this Agreement is conditioned upon its receipt of such prepayment unless otherwise agreed by the Parties in the Quote. If You fail to pay Invoice within the due date of payment as specified in Invoice, TCG may cancel the respective Quote and/or deny Your access to Service.
2. Overages. You shall pay subsequent amounts due for amounts in excess of the fixed Subscription Fees specified in the Quote (e.g., amounts in excess of the Subscription volume purchased) at the end of each billing period specified in the Quote (e.g., at the end of each calendar quarter) or at the end of the Subscription Term whichever comes earlier.
3. Late Payments. If any undisputed payment due under this Agreement is delinquent for any reason, interest shall accrue and be payable, to the extent legally enforceable, on such unpaid principal amounts from and after the date on which the same became due to the date of actual payment at the lower of one and one-half percent (1.5%) per month and the highest rate permitted by Applicable Law.
4. Taxes. You will pay TCG or Partner (if purchases through Partner) all applicable Subscription Fees and sales and use tax, excise tax, value-added tax (VAT), goods and service tax, service tax, business tax and other similar or applicable taxes, however characterized, that TCG is required under Applicable Law to charge You or otherwise pay in connection with providing the Service to You (" Indirect Taxes") except for taxes based on TCG's net income. If any Applicable Law requires You to withhold tax amounts from the Subscription Fee to TCG, You shall withhold such an amount of tax from the payments which You are only legally obligated to withhold, taking into consideration all exemptions, reliefs and reductions, at the rate of withholding tax under Applicable Law or at the rate as a result of applying any double tax treaty in force at the time of the Subscription Fee payment. You will effect such withholding, remit such withheld tax amounts to the appropriate tax authorities and promptly provide TCG with tax receipts evidencing the payments of such withholding tax amounts and all other supporting documents as may be required by TCG to claim a tax credit in its jurisdiction.
5. Invoicing. You will be invoiced for applicable Subscription Fees and Indirect Taxes on a periodic basis. You shall pay all amounts invoiced in accordance with the terms of the relevant Quote by means of electronic transfer. You are responsible for any outgoing bank transfer charges associated with the payments You make hereunder. You may not set off payments due to TCG against any amounts TCG may owe to You. Subscription Fees are non-refundable and non-cancellable.
6. Payment Fulfilment. All payment obligations of You shall be deemed fulfilled when the applicable sums due are credited to TCG's or Partner’s bank account.
7. Changes. TCG may change the prices and charges associated with the Service and payment procedure from the date of auto-renewal of Your Subscription(s) by giving You at least ninety (90) days of prior notice. Such revised prices and payment terms will be binding on You once they come into effect.
8. Additional Information. TCG in its sole discretion acting reasonably may request from You additional information, which may be reasonably required for compliance and other purposes, before processing Subscription renewal(s); and if such requested additional information is not provided by You within the timeframe defined by TCG, then TCG may, in its sole discretion, reject or postpone the auto-renewal of Your existing Subscription, or terminate a then-current Subscription.
9. Quote Execution. If You execute and/or return a Quote to TCG after the Subscription start date indicated in such Quote, TCG may, at its sole discretion, adjust the Subscription start date and the end date, without increasing the total price under such Quote, based on the date TCG provides the TCG Software to You after You execute and/or return such Quote to TCG and provided that the Subscription Term length under such Quote does not change.
Confidentiality
1. Confidential Information. Each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”).
2. Protection of Confidential Information. The Receiving Party shall:
  1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
  2. except as may be permitted by and subject to its compliance with this Agreement, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Agreement; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth herein;
  3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
  4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps with Disclosing Party to prevent further unauthorized use or disclosure;
  5. ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with the terms set forth herein.
3. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by Applicable Law to disclose any Confidential Information then, to the extent permitted by Applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Applicable Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Maintenance and Support
1. Technical support and maintenance for the Service will be provided according to the concluded ”Cloud Service Maintenance and Support Agreement” with You which is available as the Exhibit D below. In the event of any conflict of terms between the software maintenance and support agreement and this Agreement, the terms of the software maintenance and support agreement shall prevail.
Termination
1. Term and Termination. This Agreement shall be effective upon the earlier of the following: (a) the date You accept this Agreement; or (b) the date You first use the Service. This Agreement shall continue in effect for as long as You use or access the Service or until this Agreement is terminated in accordance with this Section.
2. Subscription Term. The Subscription Term shall commence on the Quote Effective Date and shall continue for the term specified therein and any renewals thereto (if any). Except as otherwise specified in the relevant Quote and without prejudice to the Section , each Subscription will automatically renew for an additional twelve (12) - month terms following the Initial Subscription Term, unless either Party gives the other written notice of termination at least thirty (30) days before the end of the relevant Subscription Term. Notwithstanding anything to the contrary, any renewal in which Subscription volume or Subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
3. Termination by TCG
  1. For cause. Without prejudice to TCG’s other rights and remedies under this Agreement or Applicable Law and without liability to You, TCG has the right to suspend the Service, suspend or terminate the performance of any of its obligations under this Agreement, and terminate this Agreement immediately at any time if any of the following occurs:
    1. You have failed to pay any invoice when due and such payment default continues for fifteen (15) days or more after receipt of TCG's written notice of late payment;
    2. You go into bankruptcy (whether voluntary or involuntary), experiences a voluntary or involuntary dissolution, is or is declared insolvent, makes an assignment for the benefit of creditors, suffers the appointment of a receiver or trustee over all or substantially all of its assets, or admits in writing an inability to pay its debts as they become due;
    3. You breach any term of this Agreement and You fail to cure such breach within thirty (30) days after Your receipt of written notice of the breach from TCG;
    4. TCG reasonably determines Your use of the Service (1) violates, or the continued performance of this Agreement would violate, Applicable Law, or (2) misappropriates or infringes the Intellectual Property Rights of a third party, or poses a threat to the security or performance of TCG's network or to any of Your clients or suppliers;
    5. You become a Restricted Person as defined in Section (Trade Restrictions), or You breach Section ; in which case TCG shall have no further obligation to You whatsoever hereunder;
    6. you are subject to a change of Control and it is no longer reasonable to expect TCG to adhere to this Agreement due to the change of Control, in which case TCG shall not unreasonably delay negotiations for a new Service agreement with the anticipated owner of Your organization; or
    7. Your Account has been removed as per rules set in the Section of the Agreement.
4. Termination for Convenience. One Party may terminate this Agreement without any cause upon ninety (90) days’ written notice to the other Party, provided that no active Subscriptions exist on the date of such termination.
5. Termination by You. You may terminate this Agreement or a Subscription in case of a material breach of this Agreement by TCG and if such breach is not substantially cured within thirty (30) days after TCG's receipt of written notice from You. In the event of such termination, You shall contact TCG technical support to deactivate Your Account and cease Your use of the Service within sixty (60) days after written notice of termination has been provided to TCG.
6. Other grounds of Termination. The DPA may contain other grounds for termination. If the DPA is being terminated according to the applicable DPA, TCG may temporarily suspend the Service.
7. Partners. If You purchased the Service directly from a Partner, the Partner may have a right to revoke the Service, limit Your access to it or delete some or all of the Uploaded Data. All disputes between You and such Partner, whether or not relating to any information, data or forms available on or through the Service, will be settled by and between You and such Partner. TCG bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.
8. End of Life. TCG may at any time at its discretion determine that the Service or its individual feature(s) is EoL. TCG shall notify You no later than 90 (ninety) days before the EoL date. If You prepaid the fee for Service that is subject to EoL, TCG will use commercially reasonable efforts to transition You to a substantially similar cloud service and the remaining unused amount will be credited towards the future purchase of such other cloud service. If TCG does not have a substantially similar cloud service or if You do not agree to such transition and wish to terminate Your Subscription to the Service, then TCG will credit You any unused portion of the prepaid fee for such Service, calculated from the last date the Service was available.
Consequences of Termination
1. Consequences. Upon termination of this Agreement:
  1. all rights granted to You hereunder, including any active Subscription, will immediately terminate without giving rise to any right for You to receive or demand any compensation for goodwill, Authorized Users’ expenses, or any other payment of any nature from TCG or its Affiliates or Representatives;
  2. You shall be required to return (or, with TCG’s prior written consent, destroy and certify such destruction in writing) all copies of materials that embody TCG’s Intellectual Property Rights and all copies of TCG’s Confidential Information provided in connection with this Agreement. Additional requirements concerning the return of Personal Data may be applicable according to the DPA that applies to You;
  3. TCG shall invoice You for any outstanding amounts due and payable by You, and You shall pay all such amounts in accordance with this Agreement and the relevant invoice;
  4. You shall no longer have access to Your Account;
  5. You shall uninstall, delete and destroy all copies of Service Software available to You. You shall then email to TCG a confirmation via a letter of destruction signed by Your authorized Representative.
2. Uploaded Data. Upon termination of this Agreement and if not otherwise stated in the relevant Quote, TCG will have no obligation to maintain or forward any Uploaded Data and TCG may delete Uploaded Data from the Service at its sole discretion. Notwithstanding the foregoing, You authorize TCG to retain Uploaded Data on the Service following the expiration or termination of this Agreement for as long as necessary for TCG to perform its obligations under this Agreement, subject to any obligations under Applicable Law including data protection laws to retain Uploaded Data for a longer or shorter period.
3. Survival. The termination of this Agreement shall not have any effect on provisions that are intended to operate or to be in force after termination, or any right of action already accrued to TCG in respect of any breach by You. Without limiting the generality of the preceding sentence, the following provisions will survive any expiration or termination of this Agreement: Sections , , , , , , , Section , Section , Section , , , , , as well as the relevant and/or . The DPA that applies to You governs which clauses survive the termination of the DPA.
4. Consequences for a Subscription Termination. In case of a Subscription termination or expiration, the Agreement shall remain in full force and effect unless duly terminated by either Party.
5. Consequences for EoL. Upon completion of the EoL, relevant Exhibit for the particular Service shall be deemed terminated. In case You use other Services, relevant Exhibits for those other Services shall not be affected and shall remain in full force and effect unless duly terminated by either Party.
6. Refund or Payment upon Termination. If the Agreement or any active Subscription is terminated by You before the expiration of the Subscription Term for any reason except those provided in the Section , then You shall, to the extent permitted by Applicable Law, pay TCG any unpaid fees covering the remainder of the Subscription Term and if paid in advance, shall not have any right of refund. If any discounts were applied to Your Subscription, You shall also pay TCG an amount equivalent to the sum of such discount.
Ownership of IP Rights
1. Ownership.
  1. If TCG or an Affiliate provides to You and/or installs an Interface and / or Gateway from Your System to the Services, You acknowledge that TCG or the respective Affiliate owns and controls this Interface and Gateway and all intellectual property rights relating thereto remain the property of TCG or the respective Affiliate.
  2. You acknowledge that the Service and Service Marketing Materials (and all aspects and components thereof, including all Software and related technology) are owned, controlled or licensed by or to TCG, are and remain the proprietary information of TCG and are protected by Applicable Law.
  3. You acknowledge that all Intellectual Property Rights embodied in or relating to the Service and Service Marketing Materials (other than Uploaded Data) are, as between You and TCG, solely and exclusively owned by TCG and its licensors. All modifications, enhancements or changes to the Service and Service Marketing Materials and all related Intellectual Property Rights are and shall remain the property of TCG and its licensors and suppliers, without regard to the origin of such modifications, enhancements, or changes, with the exception of data created within the boundaries of the Service by You, Your Authorized Users or End Users, and with the exception of the Uploaded Data.
  4. No ownership or other rights in the Service or Service Marketing Materials or related Intellectual Property Rights are granted or transferred hereunder, except the right for You to use the Services under the terms herein, and TCG reserves all right, title and interest therein and thereto. Use of the Service or Service Marketing Materials does not grant You a license to any Intellectual Property Rights or other rights of TCG or its Affiliates or licensors or any third parties, whether express, implied, by estoppel or otherwise, or grant You the right to make or have made any products, or to use the Service or Service Marketing Materials outside the scope of this Agreement. Nothing in this Agreement limits TCG's and its licensors’ right to enforce their Intellectual Property Rights against You.
2. Feedback. If You provide to TCG comments regarding the Service or ideas on how to improve it ("Feedback"), by doing so, You also hereby assign all right, title, and interest worldwide in Feedback to TCG and agree to assist TCG, at TCG's expense, in perfecting and enforcing TCG's rights thereto and ownership thereof. You acknowledge and agree that TCG may use and incorporate Feedback into the Service or for other business purposes without compensation to You and without restriction.
3. Residual Information. To enable TCG to provide better service to Your client (including You), You agree that TCG is entitled to retain and use without restriction any of the generalized knowledge, techniques, methodologies, processes, concepts, ideas, and know-how learned or acquired by TCG's personnel in the course of providing the Service for You hereunder solely to the extent that they are retained in intangible form in the unaided memory of the personnel of TCG without intentionally memorizing such information or using any of Your Confidential Information to refresh its recollection ("Residual Information"). Such retention and use of Residual Information shall not be deemed a breach of this Agreement.
4. Use of Your Organization’s Legal Name and Trademarks. During the term of the contractual Agreement, TCG may identify You in its advertising and marketing materials as a customer of the Service, and may use Your trademarks and trade names in such materials. Furthermore, You agree that TCG may publicly disclose to the public in marketing materials or otherwise some or all of the Service features and TCG products that You are using or have used. This clause is null and void in jurisdictions that require explicit consent for such use of the brand name and trademarks.
5. TCG Trademarks. If You create an application, be it desktop, server, browser-based or mobile, that makes use of the Service, You shall display the DocProStar-trademark belonging to TCG and accurately identify and refer to TCG and its technology and services subject to and strictly in accordance with TCG guidelines available at , in Your Documentation, and, if a GUI is available, in the GUI. You shall also display a statement confirming the proprietary rights of TCG and its subcontractors identified in the Agreement or in the Service-related documentations , as well as shall not remove any proprietary notices from the Documentation. If the entire GUI of the Services, or any elements thereof, are visible or supposed to be visible as a part of Your work process, solution, application, demonstration or presentation, You are not allowed to replace, cover, or alter any logos and trademarks of TCG displayed by the Service, unless another agreement between You and TCG is in place that explicitly grants you the rights to do otherwise. TCG hereby grants You a limited, non-exclusive, revocable, non-sublicensable, non-transferable, right to use the TCG trademarks in accordance with this Section in order to comply with this Section.
6. Third-Party Software. The Service may contain components of other Third-Party Software, which are the property of their respective owners. The list of such software is available at https://cloud.tcgprocess.com/Home/ThirdPartyComponents.
Limited Warranty and Disclaimers
1. Compliance with Laws. Each Party represents and warrants to the other Party that it has the legal authority to enter into this Agreement with the other Party, and its execution and performance of this Agreement does not and will not violate Applicable Law or any other agreement to which it is a party or by which it is otherwise bound.
2. Internet Delays. TCG does not and will not provide You or Authorized Users / End Users with an Internet connection or with any hardware and software required to connect to the Internet or use the Service. Therefore, TCG is not responsible or liable for the quality of Your or Authorized Users’ / End Users’ Internet connection or the quality of the hardware and software that You or Authorized Users / End Users use to access the Internet. TCG is not responsible or liable for any malfunction or other problems in networks or services, computer systems, servers, providers, computer hardware, software, or telecoms equipment, or for any malfunction in the operation of e-mail and scripts, howsoever caused, or other damage resulting from such problems. TCG shall not be responsible or liable for any delay, malfunction, missed or late delivery, removal or loss of any of Your information provided to TCG, including but not limited to Uploaded Data, resulting from any of the circumstances described in the present section.
3. Loss of information. You acknowledge that You may be transmitting information over a public computer network and that TCG shall not be liable for any loss of information transmitted in this manner.
4. No warranties for Third Party Software products. TCG makes no warranties for any Third Party Software products and hereby expressly disclaims any such warranties.
5. Warranty disclaimer. Except for any warranty, condition or explicit representations stated in this Agreement and to the maximum extent permitted by Applicable Law, TCG makes no representation, warranty, condition, or guarantee, either express or implied, statutory, or otherwise, of any kind, including with respect to the merchantability, reliability, timeliness, quality, suitability, availability, accuracy, fitness for any purpose (even if TCG has been advised of such purpose), or completeness of the Service or any data, or the non-infringement of any third party rights. Additionally, TCG does not represent or warrant that:
  1. The use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system, or data;
  2. Any stored data or uploaded data will be or remain accurate or reliable;
  3. The results obtained by using the service are accurate, complete or useful;
  4. The service, the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your or End user’s requirements or expectations;
  5. Errors or defects will be corrected;
  6. Any solution created by or for you using or based upon the Service or the Service as incorporated into such solution shall function in any particular manner; or
  7. The Service or the computer and network infrastructure that make the service available are free of viruses or other harmful components.
6. AS IS.
  1. If you have entered into this Agreement with any TCG legal entity other than TCG Process GmbH, the following rules shall apply to You instead of Section :
    1. The Service and all data are provided to you strictly on "as is" basis.
  2. If You have entered into this Agreement with TCG Process GmbH, the following rules shall apply to You instead of Section :
    1. The Service and all data are provided to You strictly on an “AS IS” basis without a warranty of any kind (“keine Beschaffenheitsgarantie”) except a potential mandatory statutory warranty.
Limitation of Liability and Indemnification
1. Limitation of Liability
  1. If you entered into this Agreement with any TCG legal entity other than TCG Process GmbH (Germany), the following rules shall apply to You:
    1. To the fullest extent permitted by applicable law, any TCG legal entity excludes the liability for indirect, consequential damages such as lost profits or interruptions of business continuity or for indirect punitive damages.
    2. The Parties do not exclude or limit liability for claims for damages for death and / or personal injury.
    3. TCG’s liability shall in no event exceed the total of the fees payable under this concluded Agreement in the initial 12 months.
  2. If You entered into this Agreement with TCG Process GmbH (Germany), the following rules shall apply to You instead of Section to the fullest extent permitted by applicable law:
    1. TCG’s statutory liability for damages shall be limited as follows: (1) TCG shall be liable only up to the amount of damages as typically foreseeable at the time of entering into the agreement in respect of damages caused by a slightly negligent breach of a material contractual obligation required for the appropriate execution of the agreement and (2) TCG shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation. TCG shall not bear any liability beyond the limits set above in this Section , especially not in cases of consequential damages, loss of revenue or profits, punitive damages or any other special damages.
    2. The above limitation of liability also applies in respect of the personal liability of the employees, representatives and agents of TCG.
    3. The limitation of liability set forth above shall not restrict any mandatory statutory liability, in particular, to liability under the German Product Liability Act, liability for assuming a specific guarantee, liability for damage arising from a grossly negligent breach of duty or liability for culpably caused injuries to life, body or health.
2. Defence and Indemnification by You.
  1. Defence of Claims. You shall defend TCG and its Affiliates and Representatives, and each of its and their respective Representatives, officers, directors, employees, successors, and assignees (each, an “TCG Indemnitee”) against any allegation, suit or claim that directly or indirectly arises out of or relates to any of the following (individually, a “Claim”, and collectively, the “Claims”):
    1. Any information that You provide to TCG, including any Processing of Uploaded Data by or on behalf of TCG in accordance with this Agreement;
    2. Any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on Your behalf or any Authorized User, including TCG’s compliance with any specifications or directions provided by or on behalf of You or any Authorized User to the extent prepared without any contribution by TCG;
    3. Your breach of any of Your representations, warranties, covenants, or obligations under this Agreement; or
    4. Any act or omission by You, any Authorized User / End User, Your Representatives, or any third party on Your behalf, including any negligent acts or omissions, wilful misconduct, or strict liability thereof, including, but not limited to acts or omissions that infringe, misappropriate, or violate any third party’s Intellectual Property rights.
    5. Indemnification by You. You shall indemnify and hold harmless each TCG Indemnitee against any damages, liabilities, assessments, losses, costs, and other expenses (including reasonable attorneys’ fees and legal expenses) incurred by that TCG Indemnitee relating to any Claim, including:
      1. All damages, liabilities, assessments, losses, costs, and other expenses (including reasonable attorney fees and legal expenses) finally awarded against an TCG Indemnitee in any proceeding relating to any Claim;
      2. All out-of-pocket costs (including reasonable attorneys’ fees) incurred by an TCG Indemnitee in connection with the defence of any Claim (other than attorneys’ fees and costs incurred without Your consent after You has accepted defence of such Claim); and
      3. If any Claim is settled between You and the third party, all amounts agreed to by You as part of such settlement.
    6. Process. TCG shall give You reasonable notice of each Claim for which it seeks indemnity, except that failure to provide such notice will not release You from any obligations hereunder except to the extent that You are materially prejudiced by such failure. TCG will also give You its reasonable cooperation in the defence of each Claim, at Your expense. You may not use any counsel that would have a conflict of interest in representing TCG’s interests to defend any Claim. An TCG Indemnitee may participate in the defence of a Claim at its own expense. You will not settle any Claim without the relevant TCG Indemnitees’ prior written consent, which may not be unreasonably withheld. You shall ensure that any settlement You make of any Claim is made confidential, except where not permitted by Applicable Law. Your duty to defend is independent of Your duty to indemnify.
3. Indemnification by TCG.
  1. Defence. Subject to Section , TCG shall defend You and Your Affiliates and Representatives, and each of its and their respective Representatives, officers, directors, successors, and assignees (each “Your Indemnitee”) against any allegation or claim that Service when used in accordance with the terms in this Agreement, violates the Intellectual Property Rights of a third party.
  2. Indemnification. If any portion of the Service is, or in TCG’s opinion is likely to become, the subject of an Intellectual Property Rights infringement claim, then TCG, at its sole option and expense, will either: (A) obtain for You the necessary rights to continue using the Service; (B) replace the Service with products that are substantially equivalent in function, or modify the Service so that it becomes non-infringing and substantially equivalent in function; or (C) refund You the portion of the Subscription Fees paid to TCG for the portion of the Subscription Term during which You may no longer use the Service. THE FOREGOING SETS FORTH TCG’S EXCLUSIVE OBLIGATION AND LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING THE INDEMNIFICATION OBLIGATIONS STATED IN THIS SECTION HEREIN.
  3. Process. You shall give TCG reasonable notice of each claim for which it seeks indemnity, except that failure to provide such notice will not release TCG from any obligations hereunder except to the extent that TCG is materially prejudiced by such failure. You will also give TCG its reasonable cooperation in the defence of each claim, at TCG’s expense. TCG may not use any counsel that would have a conflict of interest in representing Your interests to defend any claim. TCG’s duty to defend is independent of TCG’s duty to indemnify.
  4. Dispute with Third Parties. All disputes between You and third parties, whether relating to any information, data or forms available on or through the Service, will be settled by and between You and such third party. TCG bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute.
Miscellaneous Provisions
1. Assignment. TCG may assign and transfer its rights and obligations hereunder (or any part thereof) to a third party at any time without Your consent, provided that such third party is under TCG’s Control. TCG will endeavour to give You notice of such assignment or transfer. You may not assign or transfer any of the rights or responsibilities set forth herein without the express written consent of TCG, and any purported attempt to do so is hereby deemed null and void.
2. Dispute Resolution. The following procedure shall be observed to resolve any dispute arising between You and TCG under this Agreement or otherwise. If You have reason to believe that Your rights and interests have been violated in connection with Your use of the Service, the parties shall seek an internal resolution. If the parties fail to resolve the dispute in this manner within 30 days since the start of the dispute, the dispute shall be resolved in accordance with Section of this Agreement. TCG is not obligated to respond to anonymous complaints or complaints from users who cannot be identified with the data they provided to register.
3. Waiver. The failure of either Party to enforce compliance with any provision of this Agreement shall not constitute a waiver of such provision unless accompanied by a clear written statement that such provision is waived. A waiver of any default hereunder or any of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the instance to which such waiver is directed. Except as expressly provided herein to the contrary, the exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity.
4. Severability. If any part of this Agreement is found to be or should become illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to You under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
5. Interpretation. The headings appearing at the beginning of any sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever the singular number is used in this Agreement and when required by the context, the same will include the plural and vice versa, and the masculine gender will include the feminine and neuter genders and vice versa. The words “include,” “includes” and “including” will be deemed to be followed by “without limitation.” Each Party to this Agreement acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choice, and there will be no presumption that ambiguities will be construed or interpreted against the drafter. All the terms and periods herein are calculated as calendar periods, unless otherwise expressly specified.
6. No Partnership or Agency. The relationship between the Parties is that of independent contractors. Nothing in this Agreement or any circumstances associated with it or its performance shall be construed as creating nor give rise to any relationship of employment, agency or partnership between You and TCG. Neither Party shall have any right to obligate or bind the other Party in any manner whatsoever.
7. Entire Agreement. This Agreement (along with any and all associated Appendices) is the entire agreement between the Parties as to the matters set forth herein. This Agreement supersedes all previous oral and written communications, representations, discussions, negotiations, proposals, agreements and understandings regarding these matters, including any marketing materials or Documentation provided by TCG prior to the execution of this Agreement, unless specifically referred to and incorporated in this Agreement. No usage of trade or other regular practice or method of dealing, including but not limited to any kind of purchase orders, between the parties will be used to modify, interpret, supplement, or alter this Agreement. This Agreement and all its terms apply both to the Service as a whole and to any of the Service's separate components.
8. Contact Us. Should You have any questions concerning this Agreement, or if You desire to contact TCG for any reason, please contact Your TCG sales representative or Partner.
9. Notices. Any notices or communications required or permitted to be given by this Agreement must be (a) given in writing and (b) personally delivered or mailed, by prepaid, certified mail, or transmitted by electronic mail transmission, to the Party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address of such Party (in Your case, this shall be the electronic mailing address provided on registration or any subsequently update thereto). Notice shall be deemed to have been given, if by post, on the date that the notice is delivered, and if by e-mail, when the recipient acknowledges having received that email by return email sent to the email address of the sender or by another method, with an automatic “read receipt” constituting acknowledgement of an email for the purposes of this Section . In the case of change of address, the Party whose address has changed shall provide written notification to the other Party in respect of such change and communicate the new address to the other Party.
10. Amendment to this Agreement. TCG may unilaterally change this Agreement effective as of any time, including immediately, where such changes: (a) are required to comply with Applicable Law; or (b) do not: (i) result in a violation of Your rights hereunder; or (ii) otherwise have a material adverse impact on Your rights under this Agreement, as reasonably determined by TCG. Otherwise, TCG may unilaterally change this Agreement by notifying You with at least 30 (thirty) days’ prior notice before the changes will take effect by either: (a) email; or (b) alerting You via the service interface. If You object to any such change, You must terminate the Account(s) and stop using the Service. TCG is not required to notify You about editorial changes, as well as if the changes are made to an Exhibit that is not applicable to You.
11. Force Majeure. If the performance of the provisions of this Agreement or any obligation herein is prevented, restricted or interfered with by reason of circumstances beyond the reasonable control of the Party obligated to perform it, the Party so affected, upon giving prompt notice to the other Party, shall not be liable for any delay or failure to perform the provisions of the Agreement or any obligations herein to the extent of such prevention, restriction or interference, but the Party so affected shall use its best efforts to avoid or remove such causes of non-performance and shall resume the performance of the provisions and obligations as soon as possible after such causes are removed or diminished.
12. No Third-Party Beneficiaries. This Agreement is between TCG and You. The Parties hereto acknowledge and agree that all provisions contained in this Agreement and any Exhibit are included for the sole benefit of TCG (and its Affiliates) and You and that nothing in this Agreement or any Exhibit, whether express or implied, shall create any third party beneficiary or other rights in any other person or entity, including without limitation any End User, unless otherwise expressly provided in relevant Exhibits.
Governing Law and Forum
1. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction where the TCG Entity that this Agreement is concluded with has its legal residence, without regard to or application of its conflicts of law principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
2. If disputes or disagreements arise in connection with this Agreement, the parties undertake to conduct internal mediation proceedings before recourse is made to the arbitral tribunal. If the dispute is not settled, it shall then be settled by arbitration in accordance with the International Rules of Arbitration of the Swiss Chambers of Commerce. The arbitral tribunal shall consist of one arbitrator. The seat of arbitration shall be [specify court], [specify country].

Exhibit A: Managed DocProStar

The following terms in this Exhibit are in addition to the Agreement and shall apply to You only if You purchase Managed DocProStar.

Definitions.
1. “Managed DocProStar” means Service accessible via the Internet address https://*.cloud.tcgprocess.com (where * may vary) and all of TCG's proprietary technology (including software, hardware, services, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by TCG as part of the Service, as well as ancillary online or offline services, audio, visual and text information.
2. “Service Software” is computer software known as “TCG DocProStar®” used by TCG in delivering the Managed DocProStar Service.
3. “Major Release” means a generally available release of the Service Software that contains functional enhancements or extensions, designated by Support Provider as a change in the digit to the left of the first decimal point (e.g. Software 2.0 >> Software 3.0).
4. “Minor Release” means a generally available release of the Service Software that introduces a limited amount of new features and functionality, designated by Support Provider as a change in the digit to the right of the decimal point (e.g. Software 2.0>>Software 2.1)
5. “Maintenance Release” means a generally available release of the Service Software that typically provides maintenance corrections or fixes only, designated by Support Provider by a change in the digit to the right of the second decimal point (e.g. Software 2.0 >> Software 2.0.1)
Service Use Rights. TCG grants to You a limited, non-exclusive, revocable, non-transferable right to use Managed DocProStar for processing Volume Units during the Subscription Term on a standalone basis and solely for Your own internal business purposes, on the condition and so long as You pay the Subscription Fees for Managed DocProStar and comply with this Agreement and this Exhibit.
You are not granted a right for distribution, resale, license, sublicense or any other transfer right with respect to Managed DocProStar. TCG reserves any right that TCG does not expressly and unambiguously grant to You hereunder.
Deletion Periods. TCG and its Affiliates will automatically schedule all Uploaded Data whether already processed or not for deletion within sixty (60) days after it has been uploaded to the Service. The process of deletion of the Uploaded Data may last up to seven (7) Bbusiness Ddays after it has been scheduled for deletion. If You wish to delete Uploaded Data that is already processed sooner than the specified automatic deletion period, You may define Your own deletion period using configurations available for the relevant package of processed Uploaded Data. In all cases the deletion period set by You should be less than sixty (60) days. In case if at the stage of the deletion it appears that in parallel You / Authorized Users either a) process the Uploaded Data or b) use the Uploaded Data through Service Software or the configurations available for the relevant package of Uploaded Data (“Active Use”), the deletion shall be rescheduled to a later date, which shall happen not later than within seven (7) Business Days. The deletion shall be rescheduled each time until the Uploaded Data is not being processed by You / Authorized Users or is not in an Active Use.
Updates to the latest Major Releases. Whenever a new Major Release of Service Software becomes generally available for customers in Your country, You will be informed about it and will be given the option to have Managed DocProStar updated to such new version. TCG defines the timeframe for updating the Service based on the technical nature and volume of changes introduced in the new version, availability of resources and similar factors. TCG does not guarantee that all customers of Managed DocProStar get access to updated Services at the same time.
Important Minor Releases, Maintenance Releases and patches. Whenever a new Minor Release, Maintenance Release or a patch for Service Software becomes generally available, TCG makes a decision regarding importance of such new version or the patch for the integrity and security of the Service. If the decision is that it is important, You will be informed about it and will be given the option to have your instance of the Managed DocProStar Service updated to be based on such new Release. TCG defines the timeframe for updating the Service and does not guarantee that all instances of Managed DocProStar get updated at the same time, if at all.
Duty to cooperate. Under 4 and 5 above, TCG will first update the testing environment of Managed DocProStar offered to You. In addition to other duties set forth in Chapter 3 of the Agreement (General Obligations) and in Chapter 3 of the Maintenance and Support Agreement ("End-User Obligations to Cooperate”), You are then obliged to test Your processes in the updated testing environment comprehensively and inform TCG of the results. TCG will not proceed to updating the production environment of Your instance if You have not informed it of the testing results, or if the testing results were negative.
Critical security updates and patches. If a new version or a patch for software known as “TCG DocProStar” becomes available such that TCG believes that they address critical and urgent security deficiencies, TCG may at its sole discretion update Managed DocProStar, including both test and production environments of it. TCG will inform You about this decision and the associated actions as soon as reasonably possible.
Updated Documentation. Under 4 above, TCG will provide you updated technical documentation to help You decide if Your instance of the Service should be updated. Under 5 above, if TCG decides that the new version or the patch is important enough to justify updating, TCG will also provide you the updated technical Documentation.
Survival. The termination of this Agreement or this Exhibit A shall not have any effect on provisions that are intended to operate or to be in force after termination, or any right of action already accrued to TCG in respect of any breach by You. Without limiting the generality of the preceding sentence, the following provisions will survive any expiration or termination of this Agreement or this Exhibit: Sections , and .

Exhibit B: TCG Cloud API

The following terms in this Exhibit B are in addition to the Agreement and shall apply to You only if You purchase TCG Cloud API.

Definitions
1. “TCG Cloud API” means Service accessible via the Internet address https://services.cloud.tcgprocess.com and all of TCG's proprietary technology (including software, hardware, services, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by TCG as part of the Service, as well as ancillary online or offline services, audio, visual and text information, and that is integrated with Your Solution.
2. “Your Solution” means software or a software service operated by You or on Your behalf that uses the Service via an Account, generally through an application program interface (API).
3. “Code Samples” mean the source code of sample applications made available by TCG for use with the Service.
4. “End User” means a person or legal entity using Your Solution in accordance with the End User Agreement.
5. “End User Agreement” means the written agreement between You and an End User that governs the use of Your Solution.
Service Use Rights. TCG grants to You a limited, non-exclusive, revocable, non-transferable, royalty-bearing right to use the TCG Cloud API during the Subscription Term solely to be integrated in Your Solution and for distribution to the End Users subject to this Agreement and in each case for use solely with and as part of Your Solution. Any right that TCG grants hereunder is revocable in accordance with this Agreement. TCG reserves any right that TCG does not expressly and unambiguously grant to You hereunder.
Distribution right for TCG Cloud API. Notwithstanding anything to the contrary in this Agreement, You may provide End Users with access to TCG Cloud API and TCG Cloud API Service functionality only as part of Your Solution. Except as expressly permitted herein, any distribution of TCG Cloud API or any of its component parts on a standalone basis is prohibited. End Users shall not be permitted to access online or offline, including without limitation download, install or have installed TCG Cloud API or its component parts. End Users shall not be provided with direct access to TCG Cloud API, shall not use it on a standalone basis, and shall not have any right or license to use TCG Cloud API or TCG Cloud API Service functionality separately from Your Solution.
Copyright notices. The copyright notices in TCG Cloud API shall be faithfully reproduced in each copy of TCG Cloud API distributed in or with Your Solution exactly as provided to You by TCG. Each End User Agreement entered into between You or Your authorized distributors on the one hand and End User on the other shall identify TCG as a third party beneficiary, and You shall take all steps necessary and cooperate with TCG to ensure that those agreements are enforced at all times.
End User Agreement Terms. Your End User Agreement shall contain minimal terms in favor of TCG that substantially meet the following requirements:
1. statements that Your Solution utilizes the Service with correct references to TCG name and TCG proprietary rights to the Service;
2. End User is granted only a non-exclusive, non-transferable right to use the Service as part of Your Solution;
3. TCG shall be excluded from any and all liability to the End User for any general, special, direct, indirect, consequential, incidental, or lost profits or other damages arising out of or related to the Service;
4. End User will not: (a) decompile or reverse engineer the Service Software; (b) modify, publish, transmit, license, sublicense, transfer, sell, distribute, reproduce, create derivative or collective works from, or in any way exploit the Service Software beyond the scope of permitted use or make the Service Software available, in whole or in part; (c) disclose results of any services or program benchmark tests without TCG’s prior written consent; (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Service available to any third party other than as expressly permitted under this Agreement; (e) transmit files, content, photographs, videos, personal or technical data or any other type of information or data (collectively, “User Content”) that is defamatory or libelous; (f) transmit any User Content that it has no rights to, or for which transmission would constitute infringement of third-party Intellectual Property Rights; or (g) transmit any viruses, malicious code, Trojans, worms, corrupted files, or any other similar software that may damage the operation of another's computer, data or property, or transmit any other harmful or code technology;
5. all disputes between You and End Users, whether or not relating to any information, data or forms available on or through the Service, will be settled by and between You and End User. TCG bears no responsibility for resolving such disputes and has no obligation to be involved in any way in any such dispute;
6. End User shall comply with all applicable legal requirements regarding privacy and data protection; and
7. You shall provide sufficient notice to, and, if legally required, obtain sufficient consent and authorization from End Users providing Personal Data and any other information to TCG in the course of using Your Solution in order to permit the processing of such data by TCG. The notice shall include the following statement: “Notwithstanding the above, TCG is not responsible for compliance with the particular data protection laws applicable to End Users or its industry, or to providers using critical infrastructure (e.g. financial or credit institutions, health and safety institutions, professional unions or associations, religious organizations).”
Code Samples Restrictions. Except as otherwise explicitly provided in this Agreement:
1. TCG is the owner of Code Samples and nothing in this Agreement shall be interpreted as a transfer of ownership to the Code Samples;
2. You may use the Code Samples as part of Your Solution;
3. You may study, modify and provide the Code Samples to End Users in binary code as part of Your Solution or provide in-house access to the Code Samples, provided that Your Solution uses the Code Samples solely for processing results obtained from the Service;
4. modifications to the Code Samples shall be owned by the party making such modifications;
5. if You disclose modifications it has made to the Code Samples by sending them to TCG or by any other means, TCG shall deem to have been granted an irrevocable, non-exclusive, perpetual, transferable, royalty-free license to make, use, sell, offer to sell, import, license, sub-license, and assign its license to Your modifications to the Code Samples, without remuneration due to You. You represent and warrant that the aforementioned rights granted to TCG shall be free of any third party rights or encumbrances and that You have obtained all necessary rights to grant the rights to TCG and that You have, if applicable, paid all necessary remuneration to the authors of such modifications. If You do not wish to grant to TCG the license to the modifications to the Code Samples, You should not disclose to TCG the source code of such modifications.
Deletion Periods: TCG and its Affiliates will automatically schedule all Uploaded Data whether already processed or not for deletion within thirty (30) days after it has been uploaded to the Service. The process of deletion of the Uploaded Data may last up to seven (7) Business Days after it has been scheduled for deletion. If You wish to delete Uploaded Data that is already processed sooner than the specified automatic deletion period, You may define Your own deletion period using configurations available for the relevant package of processed Uploaded Data. In all cases the deletion period set by You should be less than thirty (30) days. In case if at the stage of the deletion it appears that in parallel You / Authorized Users either a) process the Uploaded Data or b) use the Uploaded Data through Service Software or the configurations available for the relevant package of Uploaded Data (“Active Use”), the deletion shall be rescheduled to a later date, which shall happen not later than within seven (7) Business Days. The deletion shall be rescheduled each time until the Uploaded Data is not being processed by You / Authorized Users or is not in an Active Use.
Additional Warranties
1. Ownership Warranty. You warrant that You are the exclusive owner of all rights to Your Solution and that Your Solution does not infringe any third party's Intellectual Property Rights.
Technical integration. You are solely responsible for the technical integration of the Service into Your Solution, the assessment of the possibility to integrate the Service, and all costs associated with the technical integration of the Service. Under no circumstances shall TCG be liable for any failure to achieve satisfactory or timely technical integration.
Survival. The termination of this Agreement or this Exhibit shall not have any effect on provisions that are expressed to operate or to be in force after termination, or any right of action already accrued to TCG in respect of any breach by You. Without limiting the generality of the preceding sentence, the following provisions will survive any expiration or termination of this Agreement or this Exhibit: Sections , , , , , and .

Exhibit C: Data Processing Agreement

Variable	Value
Controller(s)	[xx]
Processor(s)	[xxx] (together with the Controller(s) the "Parties")
Processing Purpose	[define the purpose of processing personal data and reference to the Base Agreement]
Duration of processing	[xxx]
Categories of data subjects	[xxx]
Categories of personal data	[xxx]
Place of storage & processing	[xxx]
Sub-processors	[Microsoft Azure (Switzerland)]
Transfer outside EU and / or Switzerland	[to be defined among the parties]
Specific instructions or other special provisions	[xxx]
Information security officer	Mauro Bühler, mauro.bühler@tcgprocess.com

All terms defined in Section A shall serve as defined terms throughout this DPA.

Purpose and scope
1. The purpose of this Data Processing Agreement (the "DPA") is to ensure compliance with the EU General Data Protection Regulation ("GDPR") and the Swiss Federal Act on Data Protection ("FADP"), with respect to each law only if and to the extent applicable to the respective processing activity.
2. This DPA applies with respect to the processing of personal data as specified in Section A.
Interpretation
1. Where this DPA uses the terms defined in the GDPR or the FADP, as applicable, those terms shall have the same meaning as in that law.
2. This DPA shall be read and interpreted in the light of the provisions of the GDPR and the FADP, as applicable.
Hierarchy
1. In the event of a conflict between this DPA and the provisions of any other agreement between the Parties existing at the time when this DPA is agreed or entered into thereafter, this DPA shall prevail, except where explicitly agreed otherwise in text form.
Description of processing(s)
1. The details of the processing operations, and in particular the categories of personal data and the purposes of processing for which the personal data is processed on behalf of the data controller, are specified in Section A.
Obligations of the Parties
1. General
  1. The data processor shall process personal data only for the defined purpose, unless required to do so by applicable law to which the processor is subject. Such instructions are specified in Section A. If subsequent instructions are given by the data controller throughout the duration of the processing of personal data, such instructions shall always be documented.
  2. The data processor shall immediately inform the data controller if, in the opinion of the data processor, the data controller infringes applicable data protection provisions.
2. Purpose limitation
  1. The data processor shall process the personal data only for the specific purpose(s) of the processing, as set out in Section A.
3. Erasure or return of data
  1. Processing by the data processor shall only take place for the duration specified in Section A.
  2. Upon termination of the provision of personal data processing services or termination pursuant to Clause 8, the data processor shall return all the personal data to the data controller, delete all personal data processed on behalf of the data controller, and certify to the data controller that it has done so and delete existing copies unless applicable law requires storage of the personal data.
Security of processing
1. The data processor shall implement the technical and organizational measures specified in Section C to ensure the security of the personal data, including protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access to that data (personal data breach). In assessing the appropriate level of security, they shall in particular take due account of the risks involved in the processing, the nature of the personal data and the nature, scope, context, and purposes of processing.
2. In the event of a personal data breach concerning data processed by the data processor, it shall notify the data controller without undue delay and at the latest within 72 hours after having become aware of the breach. Such notification shall contain the details of a contact point where more information concerning the personal data breach can be obtained, a description of the nature of the breach (including, where possible, categories and approximate number of data subjects and data records concerned), its likely consequences, and the measures taken or proposed to be taken to mitigate its possible adverse effects. Where, and insofar as, it is not possible to provide all information at the same time, the initial notification shall contain the information then available, and further information shall be provided as it becomes available without undue delay.
3. The data processor shall grant access to the data to members of its personnel only to the extent strictly necessary for the implementation, management, and monitoring of the contract. The data processor shall ensure that persons authorized to process the personal data received have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
Documentation and compliance
1. The Parties shall be able to demonstrate compliance with this DPA.
Use of sub-processors
1. The data processor has the data controller's general authorization for the engagement of sub-processors. The list of sub-processors the data processor can be found in Section A. The data processor shall inform in text form the data controller of any intended changes of that list through the addition or replacement of sub-processors at least 7 days in advance, thereby giving the data controller the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). Such objection shall not be unreasonably raised. The Parties shall keep the list up to date.
2. Where the data processor engages a sub-processor for carrying out specific processing activities (on behalf of the data controller), it shall do so by way of a contract which imposes on the sub-processor the same obligations as the ones imposed on the data processor under this DPA. The data processor shall ensure that the sub-processor complies with the obligations to which the data processor is subject pursuant to this DPA, the GDPR, and the FADP.
International transfers
1. Any transfer of data to a "Third Country" (any country outside of the EU/EEA and Switzerland) or an international organization by the data processor shall be undertaken only if authorized in accordance with Section A and shall take place in compliance with the GDPR and the FADP, as applicable.
2. The data controller agrees that where the data processor engages a sub-processor in accordance with Clause 5.6 for carrying out specific processing activities (on behalf of the data controller) in a Third Country and those processing activities involve transfer of personal data within the meaning of the GDPR or the FADP, as applicable, the processor and the sub-processor may use standard contractual clauses adopted by the European Commission on the basis of Article 46(2) of the GDPR in order to comply with the requirements of Chapter V of the GDPR, provided the conditions for the use of those clauses are met and provided that an internal assessment concluded that such transfer meets the level of data protection of the GDPR and the FADP.
Data Subject Rights
1. The data processor shall promptly notify the data controller about any request received directly from the data subject. It shall not respond to that request itself unless and until it has been authorized to do so by the data controller.
2. The data processor shall assist the data controller in fulfilling its obligations to respond to data subjects' requests for the exercise of their rights, namely:
3. The data processor shall assist the data controller in case a data subject has lodged a complaint to the competent supervisory authority that concerns data processed on the basis of this DPA.
4. In addition to the data processor's obligation to assist the data controller pursuant to Clause 6(b), the data processor shall furthermore assist the data controller in ensuring compliance with the following obligations, taking into account the nature of the processing and the information available to the data processor:
5. The Parties shall set out in Section C the appropriate technical and organizational measures by which the data processor is required to assist the data controller in the application of this Clause as well as the scope and the extent of the assistance required.
Notification of personal data breaches
1. In the event of a personal data breach, the data processor shall cooperate in good faith with and assist the data controller in any way necessary for the data controller to comply with its obligations under Articles 33 and 34 of the GDPR and Article 22 of the FADP, as applicable, taking into account the nature of processing and the information available to the processor.
2. The data processor shall assist the data controller in notifying the personal data breach to the competent supervisory authority, where relevant. The data processor shall be required to assist in obtaining in particular the following information which, pursuant to Article 33(3) of the GDPR or Article 22(2) of the FADP, as applicable, shall be stated in the data controller's notification:
Termination
1. Without prejudice to any provisions of the GDPR or the FADP, as applicable, in the event that the data processor is in breach of its obligations under this DPA, the data controller may instruct the data processor to temporarily suspend the processing of personal data until the latter complies with this DPA or the contract is terminated. The data processor shall promptly inform the data controller in case it is unable to comply with this DPA, for whatever reason.
2. The data controller shall be entitled to terminate this DPA where:
3. This Agreement shall remain in full force and effect so long as the Base Agreement remains in effect. Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Base Agreement in order to protect Personal Data shall remain in full force and effect.
Liability and indemnity
1. To the extent permitted by law, either party's liability arising out of or in connection with this Agreement shall be limited to direct damages and to the remuneration due in connection with this Agreement for the last 12 months.
2. Liability is in any case unlimited for:
  1. gross negligence and intent; and
  2. material damage and personal injury.

Annex 1 to Data Processing Agreement: Technical and Organisational Measurements for Data Security

Basic information. TCG Informatik AG (“TCG”) is committed to adhere with the applicable data protection requirements and to uphold a high standard of data security. We have implemented the following measurements according to article 7 FDPA and article 32 para 1 GDPR. The implemented measurements seek to protect the following objectives: data access control, storage control, user control, data transport control, data input control, data disclosure control, data recovery, data breach detection, and systems availability.
Organizational security measures
1. Security Management
  1. Security policy and procedures: documented security policy with regard to the processing of personal data.
  2. Roles and responsibilities:
    1. Roles and responsibilities related to the processing of personal data are clearly defined and allocated in accordance with the security policy.
    2. During internal re-organizations or terminations and change of employment, revocation of rights and responsibilities with respective hand-over procedures is clearly defined.
  3. Access Control Policy: Specific access control rights are allocated to each role involved in the processing of personal data, following the need-to-know principle.
  4. Resource / asset management: register of the IT resources used for the processing of personal data (hardware, software, and network). The information security officer is assigned the task of maintaining and updating the register.
Incident response and business continuity
1. An incident response plan with detailed procedures and defined roles is implemented to ensure effective and orderly response to incidents pertaining personal data.
2. Business continuity: In the event of a security incident or personal data breach, an established procedure to secure level of continuity and availability of the IT system.
Human resources
Confidentiality of personnel: TCG ensures that all employees understand their responsibilities and obligations related to the processing of personal data. Roles and responsibilities are clearly communicated during the pre-employment and/or introduction process.
Technical security measures
1. Access control and authentication
  1. An access control system applicable to all users accessing the IT system is implemented. The system allows creating, approving, reviewing, and deleting user accounts.
  2. The use of common user accounts is avoided. In cases where this is necessary, it is ensured that all users of the common account have the same roles and responsibilities.
  3. When granting access or assigning user roles, the “need-to-know principle” shall be observed in order to limit the number of users having access to personal data.
  4. The authentication credentials (such as user ID and password) shall never be transmitted unprotected over the network.
2. Logging and monitoring. Log files are activated for each system / application used for the processing of personal data. They include all types of access to data (view, modification, deletion).
3. Security of data at rest: Workstation security:
  1. Users are not able to deactivate or bypass security settings.
  2. Anti-virus applications and detection signatures are configured on a regular basis.
  3. Users don't have privileges to install or deactivate unauthorized software applications.
  4. Critical security updates released by the operating system developer are installed regularly.
4. Network/Communication security
  1. Whenever access is performed through the Internet, communication is encrypted through cryptographic protocols.
  2. Traffic to and from the IT system is monitored and controlled through firewalls and intrusion detection systems.
Back-ups
1. Backup and data restore procedures are defined, documented, and clearly linked to roles and responsibilities.
2. Backups are given an appropriate level of physical and environmental protection consistent with the standards applied on the originating data.
3. Execution of backups is monitored to ensure completeness.
4. Mobile/Portable devices: Mobile and portable device management procedures are defined and documented establishing clear rules for their proper use.
Data deletion/disposal
1. Software-based overwriting will be performed on media prior to their disposal. In cases where this is not possible, physical destruction will be performed.
2. Shredding of paper and portable media used to store personal data is carried out.
Physical security. The physical perimeter of the IT system infrastructure is not accessible by non-authorized personnel. Appropriate technical measures (e.g. intrusion detection system, chip-card operated turnstile, single-person security entry system, locking system) are set in place to protect security areas and their access points against entry by unauthorized persons.

Exhibit D: Cloud Service Maintenance and Support Agreement

between
[Insert name and address of Support Provider, i.e. TCG Entity or Reseller]
hereinafter “Support Provider”
and
[Insert name and address of Customer]
hereinafter “Customer”

Definitions. Terms defined in the TCG Cloud Service Agreement, including its Exhibits and Addenda, shall have the same meaning when used herein.
1. “Business Hours” or “Business Days”: means Monday Through Friday 8:00 AM to 6:00 PM [time zone], exclusive of [holidays schedule].
2. “Error” means any verifiable and reproducible failure of the Service to materially conform to the Documentation. Notwithstanding the foregoing, the term “Error” shall not include any failure of the Service to materially conform to the Documentation that:
  1. results from Customer’s misuse or improper use of the Service;
  2. does not materially affect the operation and use of the Service;
  3. results from the modification or addition to the Service that is not part of the Service that Support Provider makes generally available.
3. “M&S” means “Maintenance and Support”.
4. “M&S Fees” means those fees that are applicable to the Maintenance and Support as specified in a Quote.
5. “M&S Period” means the annual period for which Customer has purchased Maintenance and Support and any subsequent renewal periods.
6. “Response Times” means the time between the Support Provider receives a support request from Customer and the time Support Provider responds to such request. Response Times are measured in Support Provider Business Hours.
7. “Severity” means the relative impact an Error has on the use of the Services, as determined by Support Provider. The following Severity levels are applicable to all Services.
  1. “Severity 1” means that Service is completely down or non-functional in all respects, with no immediately available workaround. Severity 1 support requires Customer to have dedicated resources available to work on the issue on an ongoing basis during Customer’s contractual hours.
  2. “Severity 2” means when major functionality is severely impaired. Although operations may continue in a restricted fashion, Customer’s ability to use the Service has been significantly impaired, with no functional workaround possible. For example, documents get processed until the point where they must be approved, but the approval functionality does not work so the documents are backing up.
  3. “Severity 3” describes a partial Service outage, affecting a non-critical aspect of the functionality. In these cases, either a workaround exists, or the impairment does not significantly hinder productivity, or the impacted functionality is not critical for day-to-day operation.
  4. “Severity 4” involves minor impediments, general usage questions, or issues related to user interface anomalies, artifacts, or rendering issues. An example of this can be error messages that occur rarely and do not materially hinder users from completing tasks or transactions. Another example can be requests to fix minor spelling or grammar mistakes in user interfaces or Documentation.
8. “TCG Cloud” means the part of public cloud compute infrastructure such as Microsoft Azure rented by TCG Informatik AG for providing Services, as well as Service Software installed thereupon.
9. “Change request” means a written request made by Customer to the Support Provider for alterations, enhancements, or modifications to the Services, other than an Error report. Examples thereof are:
  1. increasing or decreasing the processing power of the Service (“scaling up” and “down’’);
  2. adding or removing auxiliary resources such as supplementary databases, SFTP servers, or virtual machines for running third-party software;
  3. adding or removing Service Software components not included in the standard proposition, such as runtime environments other than “testing” and “production,” a web scan server, and so on;
  4. modifying backup policies;
  5. creating new accounts or removing accounts.
10. “Service Maintenance” means the provision of Major Releases, Minor Releases, and Maintenance Releases, if any, to the Service Software, as well as any corresponding Documentation. Customer’s use of such Major Releases, Minor Releases, and Maintenance Releases shall be subject to the terms of the Support Provider’s Customer License Agreement. Service Maintenance also includes provisioning of new TCG Cloud resources, (re-)configuring TCG Cloud resources, and similar actions aimed at extending, fixing, and improving Services and undertaken at the initiative of the Service Provider as opposed to a reaction to an Error report or a Change request received from the Customer.
11. “Named contact" means a designated individual within Customer’s organization who is responsible for communicating with the Support Provider. This person serves as the point of contact for requesting assistance, reporting issues, and receiving updates or information related to the Service.
Service Terms
1. Support Provider shall provide Maintenance and Support for Services during the M&S Period, subject to conditions and limitations described herein. Support Provider will use reasonable efforts to respond to a request for interactive technical support within the Response Times stated herein. M&S shall be delivered solely to the Named Contact(s) identified by Customer.
2. Services updates. Support Provider will make reasonable efforts to ensure that Services run on the latest Major Release of the Service Software. Support Provider will update Services to utilize a new Major Release as soon as technically and commercially possible, but in any case, within not more than 6 months following the start of availability of such Major Release for on-premises installation in Customer’s country. Support Provider is not obliged to update Service Software to run on any Minor and Maintenance Releases, unless such Releases offer sufficient remedies for concrete errors or other impediments experienced by Customer, in which case such updates are regulated by the applicable clauses of this Agreement as well as by technical capacities on Support Provider’s side.
3. Proper Use of Services. Support Provider’s obligation to provide M&S is contingent upon the Customer’s proper use and application of the Services. Problems caused by any of the following situations are not included in the M&S but may be addressed separately upon request at Support Provider’s then-current hourly rates for consulting, subject to then-current standard consulting services terms and conditions:
  1. any accident, failure, neglect, or misuse that takes place outside of Service Provider’s control;
  2. improper use of the Services and Service Software that deviates from any operating procedures as specified in the Documentation;
  3. actual or attempted modification, alteration, or addition to the Services undertaken by Customer or any third party;
  4. the use of third-party software not specified in the Documentation;
  5. any customized deliverables created by Support Provider for Customer as part of consulting and professional services;
  6. any technical issue unrelated to an Error.
Customer Responsibilities. Support Provider’s obligations regarding M&S are subject to the following:
1. Customer agrees to receive from Support Provider communications via e-mail, telephone, and other formats, regarding M&S such as communications concerning an Error or other technical issues, renewals, and the availability of new releases. Customer’s Authorized Users shall cooperate to enable Support Provider to deliver the M&S.
2. Customer will ensure that all Named Contact(s) have a reasonable understanding of the Services and the system that it is operating on and shall be fully aware of Customer’s obligations regarding Confidential Information. Customer is solely responsible for the use of the Services by its personnel and shall properly train its personnel in the use and application of the Services.
3. Customer shall promptly report to Support Provider all Errors with Services and shall implement any corrective procedures provided by Support Provider reasonably promptly after receipt.
4. Customer is solely responsible for protecting and backing up the data obtained as the result of using the Services. Customer shall be solely responsible for all restoration and reconstruction of lost or altered files, data, or programs. Customer will maintain and implement a complete data backup and disaster recovery plan. Customer shall be solely responsible for all security of its confidential, proprietary, and/or classified information as soon as it leaves TCG Cloud in response to a request made by Customer or on Customer’s behalf.

Support Plan, Process, and Method

The Support plan is defined as follows:

Day	Hour	Number of Named Contacts	Accounts	Auxiliary resources and components created / removed as per a Change request
means one Business Day.	Means one Business Hour during a Business Day.	Up to 4	Customer is entitled to a reasonable number of accounts during the initial Service setup, with the flexibility to add or remove up to 5 accounts each month at no additional cost. Any accounts exceeding this limit may incur charges for both additions and removals.	Customer agrees to cover the cost of such resources / components from the moment Named Contact who initiated the Change Request is informed they are available, and to the moment such Named Contact is informed that they are no longer available. Removals shall not be unreasonably denied or delayed.

Initial Response. After Customer creates a case, Support Provider will use commercially reasonable efforts to respond to Customer within the target response time indicated below for the corresponding severity level:

Severity	Initial response time
1	2 hours
2	4 hours
3	1 day
4	2 days
Change request	1 day

Resolution Process. Support Provider will address and resolve issues that are within the control of Support Provider based on the resolution process indicated below for the corresponding severity level.

Severity	Actions	Notification of Resolution Target	Updates	Escalation to Support Provider Management	Final Resolution
1	Investigate the issue and work continuously until the error is fixed or a temporary workaround is implemented.	Within 4 hours after confirmation the issue is within Support Provider’s control	Every 2 hours	If the issue is not resolved within 8 hours after confirmation the issue is within Support Provider control	If temporary workaround helps and permanent code change is required, a dedicated sustaining engineer will be assigned to work on a software fix. A software fix in the form of a patch will be applied to Service Software based on the level of effort for the fix.
2	Investigate the issue and work during standard business hours until the error is fixed, or a temporary workaround is implemented.	Within 2 days after confirmation the issue is within Support Provider’s control	Every 4 hours	If the issue is not resolved within 3 days after confirmation the issue is within Support Provider control	If temporary workaround helps and permanent code change is required, a dedicated sustaining engineer will be assigned to work on a software fix. A software fix in the form of a patch will be applied to Service Software based on the level of effort for the fix
3	Investigate the issue and work on it during standard business hours as time permits, with the resolution target in mind.	Within 4 days after confirmation the issue is within Support Provider’s control	Every day	If the issue is not resolved within 5 days after confirmation the issue is within Support Provider control	If temporary workaround helps and permanent code change is required, a dedicated sustaining engineer will be assigned to work on a software fix. A software fix in the form of a patch will be applied to Service Software with the next product/version release
4	Does not require immediate response and is typically a Documentation or configuration question.	Within 7 days after confirmation the issue is within Support Provider’s control	At Service Provider’s discretion	As agreed by the parties	N/A
Change request	Investigate the request and work on it during standard business hours as time permits.	Within 8 hours after confirmation of Change request receipt.	At Service Provider’s discretion	Depends on the complexity of the change request – refer to the table below.	Depends on the nature and complexity of the change request.

Change request type	Resolution Target
Increasing the power of Customer’s instance of the Service (“scaling up”)	Requests will be served in the order they were received, typically within 8 hours.
Decreasing the power of Customer’s instance of the Service (“scaling down”)	Requests will be implemented at the beginning of the billing cycle, subject to 2 weeks’ notice.
Adding Accounts	Requests will be served within 8 hours.
Removing Accounts	Request will be handled as time permits unless the Change Request indicates that a potential security risk is involved, in which case the request will be completed as soon as possible but no later than in 8 hours.
Adding simple auxiliary resources such as Virtual Machines, SFTP accounts, File shares, SQL databases	Requests will be served in the order they were received, typically 2 days, subject to availability of Support Provider’s workforce.
Removing auxiliary resources	Requests will be implemented at the beginning of the billing cycle, subject to 2 weeks’ notice.
Adding complex resources or Service Software components	Requests will be served in the order they were received; the timeframe will depend on the complexity of the resource / component and be subject to availability of Support Provider’s workforce.
Removing complex resources or Service Software components	Requests will be implemented at the beginning of the billing cycle, subject to 2 weeks’ notice.
Other types of Change Requests	Subject to negotiations between Parties.

Temporary resolution and workaround will be measured from the time Support Provider’s personnel has access to Customer’s technical personnel familiar with the Error’s manifestation and circumstances at Customer’s side.

Support Access Methods. All access methods are subject to the Customer’s account being in good standing and are subject to the Business Hour and Business Day restrictions as defined above.
1. Email. Authorized Users may send Support requests to [email address for support]. If submitting an issue via this method, Customer must include the observed Severity Level in the email subject (e.g. “Subject: Severity 1 Application will not start”).
2. Telephone. Authorized Users may call Support Provider at [phone number].

Support Language(s). Support will be provided in the following languages: [languages].
Term and Termination. The term and termination provisions of the TCG Cloud Service Agreement apply to M&S.

Cloud Services Agreement

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