✍️EULSA
TOMORROWX END USER LICENSE AND SERVICES SUBSCRIPTION AGREEMENT
PLEASE READ THIS TOMORROWX END USER LICENSE SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE INSTALLING, EXECUTING OR USING TOMORROWX SOFTWARE OR SERVICES. BY INSTALLING, EXECUTING OR USING TOMORROWX SOFTWARE OR SERVICES, YOU SIGNIFY ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT INSTALL, EXECUTE OR USE TOMORROWX SOFTWARE AND/OR SERVICES.
This is an Agreement between TomorrowX Ltd (“TomorrowX”) company number 14247601, registered in England and Wales, and the individual or entity which purchased TomorrowX Subscription License and Services from the TomorrowX Developer Portal (“You” or “you”).
Preamble
TomorrowX Ltd (“TomorrowX”) has developed software generally known as “Composable Architecture Platform”, which is a component-driven digital delivery system for building software solutions, including platforms, apps, APIs, data streams, modifications and mediations to SaaS platforms and much more. TomorrowX is the owner of all proprietary rights to Composable Architecture Platform and the copyright to Composable Architecture Platform.
Composable Architecture Platform includes:
(a) a low-code Composable Architecture Platform Programming Editor, (b) a catalogue of Composable Architecture Platform Rules (or, Rules) that can be connected together to create a solution, which – with configurations, rulesets, data and content – are packaged into deployable Repository, (c) a Composable Architecture Platform Production Line for the management and deployment of repositories to one or any number of licensed Servers (or, Runtimes); and (d) one or any number of licensed Servers, that are licensed to run a named Solution, in either Production or Non Production environments, (e) a range of testing and operational tools, including, but not limited to, functional, performance and live probes.
While Servers are licensed separately and the individual Composable Architecture Platform Rules may be subject to additional terms, conditions and Intellectual Property Protections, all Rules and Servers are made available under this Agreement.
Composable Architecture Platform is available for evaluation under the terms of this Agreement.
After the evaluation period, to run a Solution to a Server in a production or non-production environment, the Customer will require a paid Subscription License whereby a License Key will be generated and provided per Server. The License Key may only be obtained directly from TomorrowX. The License Subscription allows the Customer to use Composable Architecture Platform for a limited term (1 year, unless stated otherwise), for a named Solution, for the specific number of licensed Production and Non-Production Servers and with the Rules that have been licensed.
TomorrowX reserves the right to alter the terms of this Agreement by providing 90 days’ notice. Notice will be provided by email to the email address registered while purchasing an evaluation or paid License Key, or as updated on TomorrowX systems from time to time.
Upon ordering a License Subscription, the Customer undertakes that Composable Architecture Platform has been checked for workability, suitability and for freedom from defects of the provided Software during a test phase. Customer shall notify any defects to TomorrowX immediately via the Support system, which is available on the TomorrowX website or as otherwise advised. Customer also confirms that Composable Architecture Platform and the data carrier, if any, have been checked for freedom from defects and confirms that freedom from defects exists.
Customer shall never be entitled to translate Composable Architecture Platform from object code into source code (for example, by reverse engineering, disassembling or decompiling). Customer shall never crack or change the License Key or modify or delete any notes regarding rights, trademarks or the like which are part of Composable Architecture Platform or the medium upon which Composable Architecture Platform is stored.
Definitions
In this agreement, the following terms have these meanings unless a contrary intention appears:
Console means the part of the Composable Architecture Platform that is used to administer, program and initiate the deployment of a Solution to the Runtime
Customer means the organisation specified in the Order Form or Online Account that has purchased Composable Architecture Platform from TomorrowX or a TomorrowX Authorised Partner.
Designated System means the Customer’s computer system described in an Order Form accepted by TomorrowX or a TomorrowX Authorised Partner.
Documentation means any TomorrowX user manuals and other documentation or provided to the Customer with Composable Architecture Platform. TomorrowX means TomorrowX Ltd (company number 14247601, registered in England and Wales), of 3rd Floor, 86-90 Paul Street, London, EC2A 4NE, United Kingdom.
Environments means the Customer specific IT states in terms of a typical software development lifecycle. Environments can include but not limited to development, test, system testing, user acceptance testing, production
License Key means the alphanumeric string of characters issued by TomorrowX, sent to the Customer following the submission and acceptance of an Order Form. Each License Key is specific to a Server and must only be installed on a single Server as per the License Key Installation Process.
Licensed Purpose means use by the Customer of Composable Architecture Platform, for the specific Function and Customer Application as may be detailed in the Order Form.
Order Form means the data submitted by a customer to TomorrowX, for example via the Developer Website, requesting a license of Composable Architecture Platform. The Order Form will be issued in response to a formal quotation from TomorrowX, which may also take the form of an electronic store product description with price.
Non-Production means the Environment or Environments that contain the Solution including Composable Architecture Platform that are not running live. These Environments include but are not limited to what would be known as development, test, system integration testing, user acceptance testing and disaster recovery.
Production means the Environment whereby the Solution including Composable Architecture Platform is running as the live system for an organisation. Can be either internally or externally facing.
Registered Business means any organisation operating under an country Business Number or equivalent.
Server means the part of the Composable Architecture Platform which a Console can deploy a Solution to and which ultimately runs the solution, in a production, non-production or trial environment
Composable Architecture Platform (or Software) means the object code version of the “Composable Architecture Platform” software product identified in an Order Form accepted by TomorrowX, including the console, servers, any Rules, Documentation and other components that are licensed as part of that Order Form, for the term and other restrictions listed in the Order Form.
Solution means the Customer software application described in an Order Form accepted by TomorrowX, with which the Customer is authorised to create and run using Composable Architecture Platform under this agreement.
Update means corrections and new versions of Composable Architecture Platform.
1 Testing of Composable Architecture Platform
1.1 Testing of Software Composable Architecture Platform is available for evaluation purposes. Composable Architecture Platform may be used and tested free of charge. In its evaluation, it is NOT to be used in Production environments or for Production loads. Without a License Key, the system is open for unauthorised use and administration. The publicly known password “admin” provides administrative access to anyone. The usage of Composable Architecture Platform without a valid license subscription for production or non-production use is strictly forbidden. TOMORROWX SHALL NOT BE LIABLE FOR ANY DAMAGE WHICH IS CAUSED BY RUNNING Composable Architecture Platform IN EVALUATION MODE. If Customer does not purchase a valid license for Composable Architecture Platform, Customer is obliged to delete all copies of Composable Architecture Platform and TomorrowX is entitled to request and receive proof of such action.
1.2 Customer is not allowed to publish any results of evaluations under any circumstances without prior written permission by TomorrowX.
1.3 The maximum time Composable Architecture Platform can be used for evaluation is 60 days – Evaluation Period. At the end of the Evaluation Period Composable Architecture Platform must either be licensed by purchasing a commercial use subscription uninstalled and all traces removed from all devices and Cloud instances
1.4 Only one evaluation of Composable Architecture Platform is allowed for a Customer within a 1 year period
2 Usage and Licensing
2.1 Upon payment of the subscription license fees, TomorrowX shall grant to the Customer a non-exclusive and non-transferable license to use Composable Architecture Platform, the licensed Server and the Documentation for the limited term, which may also be restricted by a Licensed Purpose on a Designated System in accordance with the terms of this agreement. Refer to the Electronic Subscription Email, sent to each Customer, for particulars.
2.2 The license in clause 2.1 will extend to all Updates supplied to the Customer by TomorrowX or its partners.
2.3 The Subscription License needs to be linked to a Solution nominated by the Customer upon ordering. The Subscription License will then be restricted for usage with that Solution only.
2.4 All Production and non-Production Servers associated with the Solution must be licensed.
2.5 A License Key issued by TomorrowX must only be installed on the single Composable Architecture Platform Server at any point in time that runs the named Solution associated with that specific License key. The license key installation process is defined here.
If a Solution requires more than one Server, then a new License Key will need to be purchased and installed for each Server.
License Keys are annual subscriptions and are non-transferable between Solutions.
2.6 For every Production Runtime Subscription License purchased, a maximum of three Non-Production Runtime Subscription Licenses can be purchased to support the Customer’s software development lifecycle process. If additional Non-Production Runtime Subscriptions are required then a Production Subscription License must be also purchased.
2.7 In the case of significant modification or change to the Solution, Customer must inform TomorrowX of these changes. TomorrowX, if necessary will issue another license key to Customer and at its discretion, TomorrowX shall decide if this is free of charge or billable at the Subscription Licensing at the time. Customer shall then lose the right to continue to use the first license key. TomorrowX shall be entitled to request evidence thereof within fourteen days of receipt of the new license key.
2.8 Usage of Composable Architecture Platform in certain countries and jurisdictions shall be affected in accordance with the directives applicable at the time the export/import occurs. The exporting and/or importing Customer shall be solely responsible for the compliance with the said directives. Re-export, be it separately or integrated into another system, shall be subject to approval to be obtained by Customer and shall be subject to the relevant foreign trade legislation and to US Export Regulations for the knowledge of and compliance with which Customer shall be responsible. Usage by Customers in the nuclear area, in particular in the area of manufacturing and operation of nuclear technology shall require special permits. TomorrowX reserves the right to alter the provisions on export and import at any time if national or international legislation requires.
2.9 Customer is responsible for the choice, installation and usage of the licensed Software and the intended Solution. The Customer is responsible for usage and choice of the technological environment and necessary services and the organisation to operate the systems and Composable Architecture Platform properly.
2.10 During the term of this Agreement and for one (1) year thereafter, Customer expressly grants to TomorrowX the right to audit Customer’s facilities and records from time to time in order to verify Customer’s compliance with the terms and conditions of this Agreement. Any such audit shall only take place during Customer’s normal business hours and upon no less than ten (10) days prior written notice from TomorrowX. The audit shall be carried out by either TomorrowX or an TomorrowX authorised third party. TomorrowX shall conduct no more than one such audit in any twelve-month period except for the express purpose of assuring compliance by Customer where non-compliance has been established in a prior audit. TomorrowX shall give Customer written notice of any non-compliance, and if a payment deficiency exists, then Customer shall have fifteen (15) days from the date of such notice to make payment to TomorrowX for any payment deficiency. The amount of the payment deficiency will be determined by multiplying the number of underreported Servers across all Environments supporting the Solution by the annual fee for such item. If Customer is found to have underreported the number of Installed Systems or amount of Services by 2 or more Servers, Customer shall, in addition to the annual fee for such item, pay liquidated damages equal to fifty percent (50%) of the underreported fees for loss of income and administration costs suffered by TomorrowX as a result.
3 Third party components
3.1 Composable Architecture Platform like many other products, is indebted to the efforts of a number of third-party providers. Some of those products are open source, others licensed from commercial software vendors. Composable Architecture Platform includes or is supplied together with certain components of third party software, including those identified in Third Party Software (depending on the product version). Those third party components are licensed to the Customer in accordance with the terms of the applicable third party license agreement. By entering into this agreement the Customer agrees to comply with those terms. TomorrowX gives no warranty and accepts no liability in connection with those third party components.
4 Restrictions
4.1 The Customer must not:
(a) copy Composable Architecture Platform or allow Composable Architecture Platform to be copied (other than for normal system operation as authorised by this agreement), provided that the Customer may copy Composable Architecture Platform for bona fide back-up purposes; (b) translate, adapt, vary or modify Composable Architecture Platform outside of Rules and Rule sets as per the documentation made available by TomorrowX within Composable Architecture Platform; (c) disassemble, decompile or reverse engineer Composable Architecture Platform; and (d) sub-license, rent, lease or transfer Composable Architecture Platform to any other person, whether on a permanent or temporary basis
4.2 The Customer must: (a) maintain accurate and up-to-date records of the number and location of all copies of Composable Architecture Platform; (b) supervise and control use of Composable Architecture Platform in accordance with the terms of this agreement; (c) replace the current version of Composable Architecture Platform with any Update made available by TomorrowX or its authorised resellers within 180 days of receipt, or when required to address a support request; (d) reproduce the copyright notice of TomorrowX on any copies of Composable Architecture Platform or Documentation; and (e) within fourteen (14) days after the date of termination or expiry of this agreement for any reason, return or destroy (at the discretion of TomorrowX), Composable Architecture Platform and Documentation and all updates, upgrades or copies, partial copies, modifications of Composable Architecture Platform and Documentation received from TomorrowX or its resellers or made in connection with this agreement and provide TomorrowX with a certificate certifying this has been done.
5 Support
5.1 Support and maintenance services are available through TomorrowX or an TomorrowX Authorised Partner under a separate agreement. Updates to Composable Architecture Platform will be made available to the Customer under the terms of this Agreement.
5.2 Self Help Support options: – Community Support – Knowledgebase
5.3 Support subscriptions, support upgrade options are available during the purchase process: Note: all response resolution times are average times for resolution of support issues. (a) 8×5 Support AEST (included in paid license): – Response availability: 8 x 5 excluding public holidays AEST – Response resolution: 1-3 working days – Support channels: Ticket support, Chat support (b) 24×7 per license (paid extra): – Response availability: 24 x 7 including public holidays – Response resolution: 1-3 working days – Support channels: Ticket support, Chat support
5.4 Supported Products: – TomorrowX Composable Architecture Platform – Console – TomorrowX Composable Architecture Platform – Console Repositories (e.g Console modifications, Custom Functions and XHI) – TomorrowX Composable Architecture Platform – Rules Packs (incl. Base Composable Architecture Platform Rules Pack) (Note: individual rules within packages may have their own support expiry date) – TomorrowX Composable Architecture Platform – Servers
5.5 Products Not Supported – User Created Rules and Repositories – Third Party Rules and Repositories
5.6 Excluded Support Services. Unless otherwise agreed to by the parties in writing, TomorrowX shall not be responsible for providing Support Services hereunder for problems or service issues caused by the following: (i) improper use of the Licensed Software; or (ii) modifications or customisations made to the Licensed Software; or (iii) Customer Solution specific services.
5.7 Escalation (Enterprise Subscriptions Only): In the event that a problem cannot be reproduced remotely, TomorrowX may, at its discretion, visit the Customer site where the problem has occurred, with the prior approval of the Customer. The Customer shall be responsible for TomorrowX travel expenses.
6 Price and payment
The Customer agrees to pay TomorrowX the license fee specified on the quotation that will match the Order Form. Unless otherwise specified, all fees are exclusive of all taxes and charges, including GST / VAT, which may apply to the supply of Composable Architecture Platformy or this agreement.
7 GST/VAT
If any goods and services tax (“GST”) or value-added tax (“VAT”) is payable on any supplies made under this agreement, an amount on account of GST/VAT will also be payable by the Customer as invoiced to the Customer.
8 Intellectual Property
8.1 The Customer acknowledges and agrees that TomorrowX owns all intellectual property (including copyright, trademarks, patents and so on) in or in relation to: (a) Composable Architecture Platform and Documentation; and (b) any modifications, enhancements or derivative works (including any programs developed by Customer which incorporate or utilise any Rules or code within Composable Architecture Platform).
8.2 Any modifications, enhancements or derivative works of the kind described in clause 8.1(b) that are developed by or on behalf of the Customer as permitted by this agreement will automatically be subject to the license granted by this agreement, for so long as the Customer has a paid up support contract with an TomorrowX authorised partner for the support and maintenance of Composable Architecture Platform. General purpose modifications, enhancements and derivative works that are useful to other customers and are contributed back to TomorrowX will be officially supported and automatically included in future product releases.
8.3 The Customer must not during or after the expiry or termination of this agreement in any way dispute TomorrowX’s ownership.
9 Warranty
9.1 TomorrowX warrants that it is entitled to grant the license in this agreement to the Customer.
9.2 THE CUSTOMER ACKNOWLEDGES THAT SOFTWARE IN GENERAL IS NOT ERROR-FREE AND AGREES THAT THE EXISTENCE OF SUCH ERRORS WILL NOT CONSTITUTE A BREACH OF THIS AGREEMENT.
9.3 TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, TOMORROWX DISCLAIMS ALL WARRANTIES WITH RESPECT TO COMPOSABLE ARCHITECTURE PLATFORM, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
9.4 ALTHOUGH TOMORROWX DOES NOT WARRANT THAT COMPOSABLE ARCHITECTURE PLATFORM WILL BE FREE FROM ALL KNOWN VIRUSES, IT HAS USED COMMERCIALLY REASONABLE EFFORTS TO CHECK FOR THE MOST COMMONLY KNOWN VIRUSES PRIOR TO PACKAGING BUT THE CUSTOMER IS SOLELY RESPONSIBLE FOR VIRUS SCANNING COMPOSABLE ARCHITECTURE PLATFORM
10 Indemnity
10.1 TomorrowX agrees to indemnify and defend at its own expense the Customer from and against any claim by a third party that Composable Architecture Platform or Documentation infringes the intellectual property rights (excluding patent rights) of the third party in the Territory PROVIDED THAT the Customer: (a) gives TomorrowX prompt notice of any claim that is made against the Customer; and (b) grants TomorrowX the right to defend any such claims and make settlements thereof at its own discretion; and (c) gives such assistance as TomorrowX may reasonably require to settle or oppose any such claims.
10.2 TomorrowX has no obligation to indemnify the Customer in accordance with clause 10.1 if the infringement is caused by any use or modification of Composable Architecture Platform or Documentation by Customer outside the scope of this agreement or by the combination of Composable Architecture Platform with other elements not provided by TomorrowX.
10.3 If any such infringement occurs or may, in TomorrowX’s reasonable judgment, occur, TomorrowX may at its sole option and expense: (a) procure for the Customer the right to continue using Composable Architecture Platform; or (b) modify or amend Composable Architecture Platform so that it becomes non-infringing; or (c) replace Composable Architecture Platform with other software of similar capability.
11 Liability
11.1 The Customer acknowledges that it has had an opportunity to test and evaluate Composable Architecture Platform and that it is responsible for ensuring that Composable Architecture Platformis fit for its intended purposes. The Customer warrants that it has conducted appropriate stress tests in relation to its intended use of Composable Architecture Platform.
11.2 TomorrowX will not be liable to the Customer for any loss or damage howsoever caused arising (whether in contract, tort or otherwise) directly or indirectly in connection with this agreement, Composable Architecture Platform, its use or otherwise, except to the extent to which it is unlawful to exclude such liability under applicable law.
11.3 Notwithstanding the generality of clause 11.2 above, TomorrowX expressly excludes liability for any indirect, special, incidental or consequential loss or damage or for loss of data, profit, business, revenue, goodwill or anticipated savings, which may arise (whether in contract, tort or otherwise) in respect of this agreement, Composable Architecture Platform or its use.
11.4 If any exclusion contained in this agreement is held to be invalid for any reason and TomorrowX becomes liable for loss or damage that may lawfully be limited, that liability will be limited to the license fee paid by the Customer.
11.5 TomorrowX does not exclude liability for death or personal injury to the extent only that it is caused by the negligence of TomorrowX, its employees or agents.
11.6 Notwithstanding any other provisions contained in this agreement, where any law implies any term into this agreement, and that law avoids or prohibits provisions in a contract excluding or modifying such term, that term will be deemed to be included in this agreement, but TomorrowX’s liability for a breach of that term is limited to the maximum extent permitted by that law.
11.7 The Customer acknowledges that TomorrowX has no connection with third parties that may be used as part of a rule or rule set of Composable Architecture Platform. TomorrowX will in most cases request that Customer enter into standalone agreements with such parties when and if required. However, TomorrowX will not provide support or take any liability for any damage caused, whatsoever and howsoever caused, for such third party products and/or services.
12 Confidential Information
12.1 All information, data, drawings, specifications, documentation, software listings, source or object code which TomorrowX may have imparted and may from time to time impart to the Customer relating to Composable Architecture Platform is confidential to TomorrowX (“Confidential Information”). The Customer will use the Confidential Information solely in accordance with the provisions of this agreement and will not at any time during or after expiry or termination of this agreement, disclose the Confidential Information, whether directly or indirectly, to any third party without TomorrowX ‘s prior written consent.
12.2 Except as expressly permitted by this agreement, the Customer will not itself or through any subsidiary, agent or third party use the Confidential Information to copy, reproduce, translate, adapt, vary, modify, decompile, disassemble or reverse engineer Composable Architecture Platform nor will the Customer have any software or other program written or developed for itself based on any Confidential Information supplied to it by TomorrowX.
12.3 The provisions in this clause will not prevent the disclosure or use by the Customer of any information, which, through no fault of the Customer, becomes public knowledge.
12.4 On termination or expiration of this agreement, the Customer will return or destroy all Confidential Information obtained from TomorrowX and copies thereof.
13 Termination
13.1 TomorrowX may by notice in writing to the Customer terminate this agreement if the Customer: (a) is in breach of this agreement and fails to remedy the breach (if capable of remedy) within 30 days of receiving written notice of the breach from TomorrowX; or (b) enters into any form of insolvency administration, including liquidation, bankruptcy, receivership, voluntary administration or otherwise.
13.2 On termination, the Customer will pay to TomorrowX all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of Composable Architecture Platform or this agreement.
13.3 Termination does not affect any other rights and remedies TomorrowX may have under this agreement or at law.
13.4 Upon termination or expiration of this agreement, the following provisions will survive: clauses 4, 8, 9, 10, 11 and 12.
13.5 The Customer may by notice in writing to TomorrowX terminate this agreement at any time for any reason, provided it pays all outstanding costs, including those under this License Subscription Agreement, for the full term of the contract. Note that the Customer may be required to comply with terms relating to other Agreements as well, such as those it may have entered into with a TomorrowX authorised partner.
14 Force Majeure
TomorrowX is not liable to the Customer in respect of any breach of this agreement to the extent caused by events beyond the reasonable control of TomorrowX.
15 Entire agreement
This agreement is the entire agreement between the parties in relation to its subject matter and supersedes any prior negotiations or representations.
16 Assignment
The Customer may not assign or otherwise transfer all or part of Composable Architecture Platform or this agreement without the prior written consent of TomorrowX.
17 Waiver
Failure by TomorrowX to enforce at any time any of the provisions of this agreement will not be construed as a waiver of TomorrowX’s rights or in any way affect the validity of this agreement or prejudice TomorrowX’s rights to take subsequent action.
18 Severability
If any of these terms, conditions or provisions are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, that term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
19 Law
This agreement will be governed by, and interpreted in accordance with, the laws in force in England and Wales.
Product Trial Terms & Conditions
TomorrowX provides the TomorrowX Product Trial Subscription(s) for evaluation purposes subject to the terms of the TomorrowX License Subscription Agreement.
If you use the TomorrowX Subscription for any purpose other than for evaluation, you agree to pay TomorrowX the Subscription Fee(s) for each License pursuant to the License Subscription Agreement, which is in addition to any and all other remedies available to TomorrowX under applicable law.
Examples of situations where you would incur additional fees and be in violation of the Agreement include, but are not limited to:
Using the services provided under the product trial program for a production installation,
Offering support services to third parties, or
Complementing or supplementing third party support services with services received through the TomorrowX Product Trial Subscription Program
By proceeding, you acknowledge that you’ve read and agree to the terms and conditions of the TomorrowX License Subscription Agreement which governs your use.
Published: 8 December 2021 17:07 (AEST) Last update: 14 February 2024
Last updated