Terms of Service
Last updated: January 12, 2023
These Twisp Terms of Service (the “Agreement”) are made and entered into as of the Order Form Effective Date set forth on the Order Form by and between Twisp Inc (“Twisp”), and the customer set forth on the Twisp Order Form (“Customer”).
Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Cloud Services.
1.2 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Cloud Services pursuant to Customer’s rights under this Agreement.
1.3 “Cloud Services” means Twisp’s cloud-based infrastructure-as-a-service solution through which customers may store, manage, and access data pertaining to, their Customer Data, and process data therefrom, including any autogenerated application programming interfaces (API), and any modified versions of, and upgrades, updates, and additions to such solution, ordered by Customer under an Order Form.
1.4 “Confidential Information” has the meaning given in Section 10.1.
1.5 “Customer Data” means the data, information, and materials provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services; provided that Customer Data shall not include, and Customer shall not provide or submit, any Personal Information.
1.6 “Documentation” means the published guides, manuals, instructions and/or other documentation provided or made available by Twisp to Customer in hard copy or electronic form with respect to the Services.
1.7 “Fees” means the fees for the Cloud Services and the Support Services or Solution Architecture Services which are described on an Order Form.
1.8 “Intellectual Property Rights” means any and all now known or hereafter existing: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.9 “Order Form” means an order form that is signed by both parties and references this Agreement.
1.10 “Personal Information” means information that relates to an identified or identifiable natural person, including any information that is considered “personal information,” “individually identifiable health information”, “protected health information,” “personally identifiable information,” or “personal data” under applicable law, or information of a similar character.
1.11 “Solution Architecture” means services provided by Twisp to Customer as described in any Order Form (as may be further elaborated in any statement of work), including services relating to implementation of the Cloud Services, consultation, design recommendations, as applicable.
1.12 “Services” means any services provided by Twisp to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Cloud Services, Solution Architecture services, and Support services.
1.13 “Term” has the meaning given in Section 7.1.
2. PROVISION OF SERVICES.
2.1 Access. Subject to Customer’s payment of the Fees, Twisp will provide Customer with access to the Cloud Services. On or as soon as reasonably practicable after the Order Form Effective Date, Twisp will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Cloud Services in accordance with the Access Protocols. Customer shall have sole responsibility in determining what security protocols, permissions and/or privileges Authorized Users have with respect to the Cloud Services. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Cloud Services, and notify Twisp promptly of any such unauthorized use known to Customer.
2.2 Support Services. Subject to the terms and conditions of this Agreement, Twisp will provide the support services described on an Order Form.
2.3 Hosting. Twisp will, at its own expense, provide for the hosting of the Cloud Services, provided that nothing herein will be construed to require Twisp to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Cloud Services from the Internet.
2.4 Data Security. During the Term, Twisp shall implement and maintain an information security program that incorporates administrative, technical and physical safeguards designed to: (a) ensure the security and integrity of the Customer Data; (b) prevent unauthorized access to, or disclosure of, the Customer Data; and (c) protect against threats, hazards and security incidents with respect to the Customer Data.
3. INTELLECTUAL PROPERTY.
3.1 License Grant. Subject to the terms and conditions of this Agreement, Twisp grants to Customer a non-exclusive, revocable, limited, non-transferable (except as permitted under Section 13.5 (Subcontracts; Assignment)), restricted license during the Term, solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form: (a) to access and use the Cloud Services in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s internal use of the Cloud Services. Customer may permit any Authorized Users to access and use the features and functions of the Cloud Services as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other third party to: (a) allow any third party to access the Cloud Services or Documentation, other than authorized third parties solely for the purposes of accessing Customer’s instance hosted on the Cloud Services (including via Twisp-provided APIs); (b) modify, adapt, alter or translate the Cloud Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or make available on a service bureau basis, Customer’s rights to access the Cloud Services or Documentation; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Cloud Services, except as permitted by law; (e) interfere in any manner with the operation of the Cloud Services or the hardware and network used to operate the Cloud Services; (f) modify, copy or make derivative works based on any part of the Cloud Services or Documentation; (g) access or use the Cloud Services to build a similar or competitive infrastructure or database product or service or otherwise engage in competitive analysis of the Cloud Services; (h) attempt to access the Cloud Services through any unapproved interface; or (i) otherwise use the Cloud Services or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Twisp or its licensors on the Cloud Services.
3.3 Ownership. The Cloud Services and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Twisp and its suppliers. All rights in and to the Cloud Services and Documentation not expressly granted to Customer in this Agreement are reserved by Twisp and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Cloud Services, Documentation, or any part thereof. Unless otherwise specified in the applicable SOW or Order Form, Twisp exclusively owns all rights in and to any development work and/or deliverables that result from the Solution Architecture or Support performed for Customer.
3.4 Open Source Software. Certain items of software may be provided to Customer with the Cloud Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (License Grant). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software.
3.5 Feedback. Customer hereby grants to Twisp a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Twisp will not identify Customer as the source of any such feedback.
4. FEES AND EXPENSES; PAYMENTS.
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Twisp under this Agreement, Customer will pay to Twisp the Fees. Except as otherwise provided in the Order Form or SOW: (a) all Fees to access the Cloud Services, including any minimum fee commitments, are billed annually in advance; and (b) any Fees incurred for usage of the Cloud Services over any minimum fee commitments, and any Fees for Solution Architecture or Support services, shall be billed in arrears at the end of each month in which such Fees are incurred. Fees are due and payable within thirty (30) days of the date of the invoice. Twisp reserves the right to modify the Fees payable hereunder, and the minimum fee commitments, at the beginning of each Order Renewal Term (as defined below) upon written notice to Customer at least ninety (90) days prior to such revised Fees or minimum fee commitments coming into effect. Customer shall reimburse Twisp for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer. Twisp reserves the right (in addition to any other rights or remedies Twisp may have) to discontinue the Cloud Services and suspend all Authorized Users’ and Customer’s access to the Cloud Services if any Fees are more than fourteen (14) days overdue until such amounts are paid in full.
4.2 Payment Method. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. Customer must provide Twisp with a valid credit card (Visa, MasterCard, or any other issuer accepted by Twisp) to cover any overage Fees incurred during the Term. By providing Twisp with your credit card number and associated payment information, Customer agrees that Twisp is authorized to invoice Customer for all overage Fees due and payable to Twisp under an Order Form and that no additional notice or consent is required. Customer agrees to immediately notify Twisp of any changes in billing address or the credit card used for payment hereunder.
4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Twisp’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Cloud Services to Customer. Customer will make all payments of Fees to Twisp free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Twisp will be Customer’s sole responsibility, and Customer will provide Twisp with official receipts issued by the appropriate taxing authority, or such other evidence as the Twisp may reasonably request, to establish that such taxes have been paid.
4.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER DATA AND RESPONSIBILITIES.
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Data, and for ensuring that no Personal Information is included in the Customer Data. Customer will obtain all third party licenses, consents and permissions needed for Twisp to process the Customer Data to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Twisp to use the Customer Data submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants Twisp a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Data as necessary for purposes of providing and improving the Services, (b) if Customer wishes to use its branding on its instance of the Cloud Services, to use the Customer trademarks, service marks, and logos as required to provide such branding, and (c) use the Customer Data in an aggregated and anonymized form to: (i) improve the Services and Twisp’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Data not expressly granted to Twisp in this Agreement are reserved by Customer.
5.2 Customer Warranty. Customer represents and warrants that any Customer Data will not: (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Twisp’s system or data; (e) include any Personal Information; or (f) otherwise violate the rights of a third party. Twisp shall, at Customer’s cost, back up any Customer Data uploaded onto the Cloud Services. Customer agrees that any use of the Cloud Services contrary to or in violation of the representations and warranties of Customer in this Section 5.2 (Customer Warranty) constitutes unauthorized and improper use of the Cloud Services.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all Access Protocols required in order the access the Cloud Services. Customer will have the ability to export Customer Data out of the Cloud Services and is encouraged to make its own back-ups of the Customer Data. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
6. SOLUTION ARCHITECTURE.
6.1 Services. Where the parties have agreed to Twisp’s provision of Solution Architecture services, the details of such services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the services; (b) the schedule for the performance of the services; and (c) the Fees applicable for the performance of the services. Unless specified otherwise on the SOW, all work product or deliverables shall be deemed accepted once delivered by Twisp. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
6.2 Customer Role. Customer acknowledges that the successful completion of the Solution Architecture services depends on Customer reasonably and in good faith cooperating with Twisp by: (a) providing personnel, equipment, facilities and other resources required for deploying and using the Cloud Services; (b) allocating sufficient resources, timely responding to inquiries and timely performing any tasks reasonably necessary to enable the performance of the Solution Architecture; and (c) providing complete, accurate and timely information, data and feedback regarding the Solution Architecture. Any delays in the performance of the Solution Architecture caused by Customer may result in additional applicable Fees.
6.3 Customer Policies. When Twisp performs any Solution Architecture services at a Customer facility, Twisp personnel will at all times comply with Customer’s health, safety and security policies and procedures provided in writing to Twisp.
7. TERM AND TERMINATION.
7.1 Term. This Agreement will begin on the Order Form Effective Date and continue in full force and effect as long as the Order Form and any renewals thereof remain in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form (“Initial Order Term”) will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year (such term, an “Order Renewal Term”) unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the expiration of the then-current term.
7.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Except as set forth in the prior sentence, Customer is not entitled to terminate this Agreement or an Order Form during the Initial Order Form Term or during an Order Renewal Term.
7.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); and (c) any amounts owed to Twisp under this Agreement will become immediately due and payable, including any outstanding overage or support fees or expenses and any remaining unpaid minimum fees. For clarity, in the event that Twisp permits Customer to terminate this Agreement or an Order Form prior to its expiration, Customer shall immediately pay to Twisp all minimum fees that remain owing under all active Order Forms, including any minimum annual fees for future annual terms of such Order Form. Sections 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership), 3.4 (Open Source Software), 4 (Fees and Expenses; Payments), 7.3 (Effect of Termination), 8.3 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12 (Arbitration), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
7.4 Data Extraction. For twenty (20) days after the end of the Term, as applicable, Twisp will make Customer Data available to Customer through the Cloud Services on a limited basis solely for purposes of Customer retrieving Customer Data, unless Twisp is instructed by Customer to delete such data before that period expires. After such period, subject to Section 5.1, Twisp will discontinue all use of Customer Data and destroy all copies of Customer Data in its possession.
8. WARRANTIES AND DISCLAIMERS.
8.1 Limited Warranty. Twisp represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Twisp in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Twisp will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Twisp’s option, refund the fees paid by Customer for the Services which gave rise to the breach.
8.2 Authority. Each party represents and warrants that: (a) this Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s entering into or performance of this Agreement; and (c) the entering into and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
8.3 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND TWISP MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED OTHERWISE HEREIN, TWISP MAKES NO WARRANTY REGARDING THE QUALITY OR ACCURACY OF THE CLOUD SERVICES, OR THE TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE CLOUD SERVICES OBTAINED THROUGH PROVISION OF THE SERVICES. TWISP DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
9. LIMITATION OF LIABILITY.
9.1 Types of Damages. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, OBLIGATIONS RELATING TO CONFIDENTIAL INFORMATION UNDER SECTION 10 (EXPRESSLY EXCLUDING ANY CLAIMS PERTAINING TO PERSONAL DATA), WILLFUL MISCONDUCT, AND CUSTOMER’S MISAPPROPRIATION OF TWISP’S INTELLECTUAL PROPERTY RIGHTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, THE DOCUMENTATION, OR THE USE THEREOF, OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR OBLIGATIONS RELATING TO CONFIDENTIAL INFORMATION UNDER SECTION 10 (EXPRESSLY EXCLUDING ANY CLAIMS PERTAINING TO PERSONAL DATA), WILLFUL MISCONDUCT, AND CUSTOMER’S MISAPPROPRIATION OF TWISP’S INTELLECTUAL PROPERTY RIGHTS, AND, EXCEPT FOR A PARTY’S PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO TWISP DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL TWISP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Twisp.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Twisp). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that the Receiving Party can demonstrate (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information, as demonstrated by contemporaneous, written records. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
10.4 Usage and Configuration Metrics. Twisp and its third party service providers that perform services in connection with Twisp’s performance of this Agreement may collect information regarding number of users, number of devices, number of servers, per user storage capacity, aggregate storage usage and storage locations of the Customer and may use such information only for internal business purposes, including to perform their obligations under this Agreement and to ensure compliance with this Agreement. Any information collected pursuant to this Section shall not include any Customer Data. Twisp and its third-party service providers agree to keep all collected information confidential.
Customer will defend at its expense any suit brought by a third party against Twisp, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Customer’s breach or alleged breach of Sections 5.1 (License; Ownership) or 5.2 (Customer Warranty). This section states the sole and exclusive remedy of Twisp and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
The parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within thirty (30) days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association ( “AAA”). The arbitration will be conducted in English in San Francisco, California. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 12 will not prohibit either party from: (a) seeking injunctive or other equitable relief in a court of competent jurisdiction; or (b) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 12 is found to be unenforceable, the parties agree that the exclusive jurisdiction described in Section 13.1 will govern any action arising out of or related to the Agreement.
13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. To the extent the parties are permitted under this Agreement to initiate litigation in a court, the parties agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in, and Customer hereby expressly consents to the personal jurisdiction and venue of, the state and federal courts in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Twisp, or any products utilizing such data, in violation of the United States export laws or regulations.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.5 Subcontracts; Assignment. To the extent permitted by law, Twisp may subcontract any services to be performed under this Agreement without Customer’s consent and without providing notice. Subject to the foregoing, neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.
13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.8 Independent Contractors. Customer’s relationship to Twisp is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have and will not represent to any third party that it has, any authority to act on behalf of Twisp.
13.9 Notices. All notices given under this Agreement shall be in writing and shall be deemed given upon receipt. All notices shall be sent to the parties at their respective address on the Order Form, as applicable, or to such email address or address as subsequently modified by written notice given in accordance with this section.
13.10 Counterparts. This Agreement may be executed in one or more counterparts, including via facsimile, pdf or other electronic reproduction, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
13.11 Publicity. Customer authorizes Twisp to use Customer’s name, logo, and/or trademark in connection with promotional, marketing, sales, financial and public relations activities only. If requested by Twisp, Customer shall cooperate with Twisp in marketing-related activities, which may include a press release, case study, testimonial or customer reference (collectively, the “Testimonials”). If Customer provides any written or recorded Testimonials to Twisp, Customer hereby authorizes Twisp to reproduce, publish, distribute and/or translate such Testimonials for marketing purposes (i) on websites or social media channels operated by Twisp and/or (ii) in commercial presentations or events.
13.12 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Twisp, provided that Twisp may update this Agreement at any time by posting a revised version on Twisp’s website or by otherwise notifying Customer in accordance with Section 13.9. The modifications will become effective upon posting or as otherwise stated in the notice for any new customers of the Services. If a change to this Agreement materially modifies Customer’s rights or obligations, Twisp may require that Customer accept the modified Agreement in order to continue to use the Services. By continuing to use the Services after the effective date of the modifications to the Agreement, Customer agrees to be bound by the modified terms.
14. SECURITY MEASURES.
Twisp will implement and maintain the following Security Measures with respect to the Customer Data:
14.1 Organizational management and dedicated staff responsible for the development, implementation, and maintenance of Twisp’s information security program.
14.2 Audit and risk assessment procedures for the purposes of periodic review and assessment of risks to Twisp’s organization, monitoring and maintaining compliance with Twisp’s policies and procedures, and reporting the condition of its information security and compliance to internal senior management.
14.3 Data security controls which include at a minimum logical segregation of data, restricted (e.g. role-based) access and monitoring, and utilization of commercially available and industry standard encryption technologies for Customer Personal Data.
14.4 Logical access controls designed to manage electronic access to data and system functionality based on authority levels and job functions.
14.5 Password controls designed to manage and control password strength, expiration and usage.
14.6 System audit or event logging and related monitoring procedures to proactively record user access and system activity.
14.7 Physical and environmental security of data centers, server room facilities and other areas containing Customer Personal Data designed to protect information assets from unauthorized physical access or damage.
14.8 Operational procedures and controls to provide for configuration, monitoring and maintenance of technology and information systems, including secure disposal of systems and media to render all information or data contained therein as undecipherable or unrecoverable prior to final disposal or release from Twisp’s possession.
14.9 Change management procedures and tracking mechanisms designed to test, approve and monitor all material changes to Twisp’s technology and information assets.
14.10 Incident management procedures designed to allow Twisp to investigate, respond to, mitigate and notify of events related to Twisp’s technology and information assets.
14.11 Network security controls that provide for the use of enterprise firewalls and intrusion detection systems designed to protect systems from intrusion and limit the scope of any successful attack.
14.12 Vulnerability assessment and threat protection technologies and scheduled monitoring procedures designed to identify, assess, mitigate, and protect against identified security threats, viruses and other malicious code.
14.13 Business resiliency/continuity and disaster recovery procedures designed to maintain service and/or recovery from foreseeable emergency situations or disasters.