(Terms & Conditions)
- The Microsoft Customer Agreement for Microsoft Online Services
(for the use of Microsoft Dynamics 365 Business Central, and, if applicable, i.e. if you are enrolled for Microsoft Online Services).
- SCOPE OF TERMSOF USE
TSO-DATA holds and controls certain software programs entitled the „Software Product“. The „Software Product“ includes proprietary rights in certain valuable trade names, trademarks and computer programs. The methods, ideas, know-how and procedure of TSO-DATA are a substantial, secret, defined and important part of TSO-DATA and its operation. In accordance with certain agreements with Microsoft, TSO-DATA has obtained the right to sell certain Software Products through the Microsoft Cloud Solution Provider Program („CSP“) on a subscription-basis according to the Software as a Service licensing and delivery model („SaaS“).
Terms defined in this Article 2. Definitions, and parenthetically elsewhere, shall throughout this Agreement have the meanings here and there provided. Defined terms may be used in the singular or plural. The words below are agreed to mean as follows:
- „Bill-of-Sale“ shall mean the invoice or final order confirmation confirming finalization of your order and defining the Term of the Subscription.
- „Customer“ shall mean You who has entered into this Agreement to use the Software Product for your its own use.
- „Customer Data“ means data, including all text, sound, video, or image files, and software, that are provided to TSO and/or Microsoft by You or on your behalf while using the Software Product.
- „TSO„ means TSO-DATA GmbH, an German-based company, and its affiliates, with TSO-DATA GmbH and TSO-DATA Nürnberg GmbH.
- „Order“ shall mean the order on which you place and order of the Software Product from TSO. Orders are not binding until accepted by TSO.
- „Software Product“ and „Software Product and service“ shall mean one or more of TSO’s software solutions provided under this agreement as a service (SaaS). The specific Software Product may be specified in a separate agreement between you and TSO.
- „Subscription“ means the right to use the Software Product as a service on a term basis, for one or more Units.
- „Term“ means the duration of a Subscription (e.g. 30 days or 12 months).
- „Units“ means a metric for a particular subscription license (e.g. licensed user seats, devices).
- „You“ shall mean the legal entity who has entered into this agreement.
- USE OF THE SOFTWARE
- TSO-DATA draws your attention to the fact that the software with the designation “Roasting 365 Core” cannot be used sensibly without the purchase of further modules. In order to use the software sensibly, you must purchase at least the module “R365 Starter” additionally.
- Further functionalities of the software can only be achieved by purchasing the modules of “Roasting 365”, which can be purchased individually.
- The respective functional scope is described in detail under http://roasting365.com/scope/.
- USAGE RIGHTS AND LIMITATIONS
- The Software Product has to be downloaded and installed from Microsoft AppSource (https://appsource.microsoft.com) for free. This free version offers limited functionality. To use it in full scope, certain modules must be separately licensed and installed from (https://roasting365.com/).
- Upon TSO’s acceptance of your order and for the duration of the term defined on your Bill-of-Sale, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of this Agreement and the order. You may allow your users to use the services for this purpose and you are responsible for your users‘ compliance.
- The Software Product is sold to you as a Service on a fixed-term basis. These terms only give you some rights to use the Software Product for its intended purposes. TSO and its suppliers reserve all other rights. Unless applicable law gives you more rights despite this limitation, you may use the software only as expressly permitted in the Agreement. In doing so you must comply with any technical limitations in the software that only allow you to use it in certain ways. The Agreement does not grant you any rights to copy, modify, decompile or distribute the Software Product.
- Ownership and restrictions: You retain all ownership and intellectual property rights in and to your data. TSO retains all ownership and intellectual property rights to the Software Product and the services.
- If the Software Product is an addon to a perpetually-licensed TSO Software Product, the perpetual license must be on an active Enhancement Plan (not applicable for SaaS).
- INTELLECTUAL PROPERTY RIGHTS – INFRINGEMENT
- Intellectual Property Rights: All present intellectual property rights including copyright and industrial rights in the Software Product and/or accompanying material are the sole property of TSO and/or its suppliers. This Agreement does not in any way purport to transfer any such rights to you in any respect.
- You shall notify TSO and/or Partner as soon as practicable after you become aware of: (i) any actual, threatened or suspected infringement of any intellectual property (including know-how) in respect of the Software Product, any related material or of any breach of confidence relating to any of the foregoing; (ii) any claim brought against you alleging that its use of the Software Product, any related material any intellectual property or other rights belonging to or alleged to belong to the claimant.
- PRODUCT SUPPORT
- For the Software Product, TSO makes web-based support available and is your point of contact and reference in respect of queries, complaints and technical support. Web-based is available under the URL: https://roasting365.com/.
- Support Services. TSO will provide support services including but not limited to: account set-up; sign up, accounts and billing; „how to“ articles and FAQs; service and software updates; software configuration; performance issues within TSO ‘s span of control; client connectivity and client desktop; and service availability issues within TSO ‘s span of control.
- Support hours and incident response time. TSO’s support specialists operate between the office hours of 9:00 to 17:00 GMT, Monday-Friday, excluding public holidays in Germany. TSO will use reasonable efforts to respond to support requests within 24 hours of their receipt.
- Costs of Additional Support and Services. Customer may request and TSO may offer additional support and/or services, through a separate Service Agreement and attached Statement of Work („SOW“). TSO will then estimate the work needed, its costs and fees and time plan and respond with an offer to Customer if TSO deems, at its sole discretion.
- MAINTENANCE TIME AND SLA
- Depending on the specific Software Product and service provided under this agreement, TSO may provide the service and/or host Customer Data in the cloud computing platform Microsoft Azure. It is expressly stated that TSO is not responsible for downtime or other interruptions in the service relating to Microsoft Azure and/or otherwise out of TSO’s reasonable control.
- The same appears for the license server or the Online-Shop for the Software Product under https://roasting365.com.
- Microsoft may make certain service level commitments, i.e. uptime guarantees and downtime credit policies in Microsoft’s SLA for individual Azure services, which can be accessed under the URL: https://azure.microsoft.com/en-us/support/legal/sla/.
- CUSTOMER DATA
- The survey and use of Customer Data (“your data”) is defined at https://roasting365.com/privacy-policy-2/?lang=en.
- WARRANTY AND LIABILITY – DISCLAIMER
- TSO confirms and warrants that it is the owner of and/or controls all intellectual property rights and any other rights to the Software Product necessary to perform and administer this Agreement. The Software Product is provided „as is“ with all faults and, to the fullest extent permitted by law, TSO makes no other warranties or representations than described above and accepts no other conditions in relation to the Software Product. TSO does not give any further representation, warranty or undertaking as to the effectiveness, performance, quality, merchantability, durability or fitness for any purpose of the Software Product or any related material or documentation or services, or that the Software Product, or any related material or documentation or services supplied by TSO is free from any defect or error.
- LIMITATION AND EXCLUSION OF DAMAGES.
- Irrespective of the legal basis, each contractual partner shall only be liable for
damages caused by culpable violation of an essential contractual obligation, namely an obligation the violation of which endangers the achievement of the contract for the purpose and/or the fulfillment of which makes the proper execution of this contract possible in the first place and the fulfillment of which the contractual partner may regularly rely on (cardinal obligation). Liability shall be limited to the damage typical of the contract, the occurrence of which each party to the contract had to reckon with at the time of conclusion of the contract on the basis of the circumstances known to it at that time.
- TSO-DATA Nürnberg GmbH shall only be liable for the loss of data and its recovery
if the loss could not have been avoided by appropriate data backup measures on the part of the customer.
- The limitations of liability specified in paragraphs 1 and 2 shall not apply to damages
based on intent or gross negligence, to damages resulting from injury to life, limb or health and to any claims based on the Product Liability Act.
- SUBSCRIPTION RENEWAL, TERM AND TERMINATION
- As stated in this Agreement, your Subscription shall commence on the date indicated in your Bill-of-Sale, once your order has been accepted by TSO. The Subscription duration is for a limited Term. The Term of the subscription renews automatically unless terminated. During that Term, TSO may invoice you in regular increments by sending an invoice to a single individual or email address designated by you. TSO will charge the subscription fee to you. These SaaS Customer Terms apply to you during the Term.
- The Term of the agreement renews automatically unless, prior to the date of your next invoice, TSO receives directly from you, your written notification that you do not wish to renew. Otherwise, you agree to pay renewal charges.
- At this time, subscriptions that are cancelled will not incur an early termination charge. At a future date, however, early termination charges may be incurred for new subscriptions that are cancelled prior to their expiration, at Microsoft’s and/or TSO’s discretion.
- In addition to any other rights and remedies at law, TSO shall be entitled to terminate this Agreement forthwith by giving written notice if:
- you commit any breach of this Agreement and if the breach is capable of remedy, fail to remedy it within 30 days after being given a written notice containing full particulars of the breach and requiring it to be remedied; or
- you become directly or indirectly involved, in the design, development, manufacture and/or distribution of any products which compete directly with the Software Product.
- The Software Product checks for valid license/subscription Terms in irregular period. The transmission of information of the Software Product may include:
- Customer subscription information
- name of the licensed Software Product
- serial number/license key of the license (if applicable)
- version of the Software Product
- date of last use of the Software Product
(validating subscription Term)
- Obligations Surviving Termination. Notwithstanding any expiration or termination of this Agreement and any exercise of rights by you or Partner under a separate agreement hereunder, the following rights and obligations shall survive any such termination or exercise of rights necessary to permit their complete fulfilment or discharge:
- TSO’s right to receive or recover, and your obligation to pay any fees or other sums payable which are vested in, accrued or accruable at the time of termination or exercise of such rights.
- Any rights or remedies of TSO under this Agreement, with regards any cause of action or claim of either party, whether or not accrued at the time of termination, arising from the other party’s breach of or failure to perform any obligation under this Agreement.
- In addition to the rights and obligations which survive as expressly provided in this Agreement, the Articles and Schedules which by their nature should survive, shall survive and continue after any termination or expiration hereunder.
- This Agreement is personal to you, you are not entitled to assign, mortgage, charge, or otherwise transfer or sub-license any rights under this Agreement, except with prior written approval.
- If any provision hereof is determined by a tribunal of competent jurisdiction to be illegal or unenforceable, it shall automatically be deemed conformed to the minimum requirements of law and, along with all other provisions hereof, shall thereupon be given full force and effect.
- Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate the remainder of such provision or the remaining provisions of this Agreement that shall continue in full force and effect.
- Governing Law – Jurisdiction.
- The laws and jurisdiction of the country where you acquired the Software Product and services shall apply.
- Notwithstanding the foregoing, TSO reserves the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under this Agreement from any court of competent jurisdiction.