Master Subscription Agreement
Last updated: October 09, 2020
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY SIGNING THIS AGREEMENT OR BY USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on Oct 9, 2020. It is effective between You and Us as of the date of You accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-TwinThread Offerings” means products, services or information provided by third parties and not by Us. “Non-TwinThread Applications” means the mechanisms by which You consume or utilize Non-TwinThread Offerings.
‘On-Premise Software” means Software that is installed on hardware owned or arranged by and under the control of You, such as hardware owned by You, a private cloud or a public cloud. On-Premise Software is managed by You. Examples of On-Premise Software include the TwinThread Agent.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“PII” means information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.
“Platform” - Our Predictive Operations Platform
“Services” means the TwinThread services that are ordered by You under an Order Form and made available online by Us. “Services” exclude Non-TwinThread Applications and include On-Premise Software.
“Subscription License” means a license allowing Customer to access Services, and to copy, install and use On-Premise Software, for the period of the Subscription Term.
“Subscription Term” means the period of time specified in an Order Document during which the Subscription License is in effect.
“User” means an individual who is authorized by You to use the Services, for whom Users may include, for example, Your employees, consultants and contractors.
“We,” “Us” or “Our” means the TwinThread entity described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Services or collected and processed by or for You using the Services (including electronic data and information the Services may obtain from Non-TwinThread Applications).
2. OUR RESPONSIBILITIES
2.1. Provision of Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Services to You at no additional charge, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), failure or delay of providers of Internet service or Non-TwinThread Applications, or denial of service attack.
2.2 Technical Support: For the purposes of this Agreement, technical support levels shall be defined as follows:.
2.2.1 "Level One Support" means answering and logging requests for technical support; confirming that the entities requesting technical support are paid subscribers and are eligible to receive technical support for the Services; directly answering questions and resolving issues that can be addressed through use of Documentation and similar resources; tracking and reporting technical support requests and resolution statuses; translating communications, if any, to and from technical support.
2.2.2. "Level Two Support" means providing all required technical support directly to Users, duplicating problems described in technical support requests, exercising best efforts to develop workarounds to problems, generating detailed descriptions of problems and requests.
2.2.3. "Level Three Support" means developing complex workarounds to Platform problems, fixing problems in the Platform code and manufacturing updates and upgrades to the Platform, and bug fixes, patches and service packs for the Platform.
2.2.4. Your Support Obligations. You (either directly or indirectly through an authorized User) will provide Level One Support directly to Your Users as you determine necessary.
2.2.5. Our Support Obligations: We will provide Level One Support through Level Three Support directly to You and Your Users. Access methods and service levels are defined in Appendix C of this Agreement.
2.4.Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement.
2.5. Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such Beta Services in Your sole discretion. Beta Services will be clearly designated as beta, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. We may discontinue Beta Services at any time in Our sole discretion and may or may not make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. USE OF SERVICES
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2. Usage Limits. Services are subject to usage limits as described in Appendix B. Unless otherwise specified, the Services may not be applied to more than the limits described in Appendix B. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
3.3. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data and provide it to Us, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Us promptly of any such unauthorized access or use, (d) use Services only in accordance with applicable laws and government regulations, (e) comply with terms of service of Non-TwinThread Applications with which You use Services and (f) use the Services to the limits described in Appendix B of this agreement.
3.4. Usage Restrictions. You will not (a) make the Services available to, or use the Services for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a service bureau or outsourcing offering except as described in this Agreement, (c) use the Services to store or transmit Customer Data that infringes the intellectual property rights or other proprietary rights of any third party or violates third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to or perform security testing on the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Services, other than framing on Your own intranets or otherwise for Your own internal business purposes, (j) access the Services in order to build a competitive product or service, (k) reverse engineer the Services (to the extent such restriction is permitted by law), or (l) decompile or disassemble the Services.
3.5 Suspension. We retain the right to suspend the Services, Your accounts and User accounts in the event of any security threat or Your breach or threatened breach of any of the restrictions in Section 3.4. We will terminate any such suspension as soon as We determine that the risk underlying the suspension has been mitigated to Our satisfaction.
3.6 Use of the Services. You are responsible for identifying and authenticating all licensable elements as described in Appendix B accessing the Services, for approving access by such elements to the Services, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Your and Your Users’ usernames, passwords and accounts with Us, You accept responsibility for the confidentiality and timely and proper termination of user records in Your local (intranet) identity infrastructure or on Your local computers. We are not responsible for any harm caused by unauthorized access to the Services due to Your failure to deactivate usernames, passwords or accounts on a timely basis in Your local identity management infrastructure or Your local computers. You are responsible for all activities that occur under Your and Your Users’ usernames, passwords or accounts or as a result of Your or Your Users’ access to the Services.
3.7 License. We grant you a worldwide, non-exclusive, non-transferable, non sub-licensable (except as described in this document) right to copy, install and use the On-Premise software for the duration of the Subscription term, subject to the terms and conditions of this agreement. We do not license On-Premise Software on a perpetual basis.
4. NON-TWINTHREAD OFFERINGS
4.1. Non-TwinThread Offerings. The Services may contain optional features designed to interoperate with Non-TwinThread Offerings such as Single Sign On. To use such features, You may be required to obtain access to Non-TwinThread Offerings from their providers, and may be required to grant Us access to Your account(s) on the Non-TwinThread Offerings. Any acquisition by You of Non-TwinThread Offerings, any exchange of data between You and any provider of a Non-TwinThread Offering, and any governing terms are solely between You and the applicable provider. We do not warrant or support Non-TwinThread Offerings, whether or not they are recommended by Us or otherwise. If the provider of a Non-TwinThread Offering ceases to make the Non-TwinThread Offering available for interoperation with the corresponding Services features on reasonable terms, We may cease providing those Services features without entitling You to any refund, credit, or other compensation.
4.2 Special Terms. Some Non-TwinThread Offerings are subject to specific terms if you use them.
5. FEES AND PAYMENT FOR SERVICES
5.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Suspension of Services and Acceleration. If any amount owing by You under this or any other agreement for the Services is 60 or more days overdue (or 20 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full. We will give You at least 20 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending Services to You.
5.4. Payment Disputes. We will not exercise Our rights under 5.3 (Suspension of Services and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.5. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.6. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than the right to receive and use Services as expressly set forth herein.
6.2. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited-term license to host, configure, copy, transmit and display Your Data as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data or any Non-TwinThread Application.
6.3. License by You to Use Feedback; Marketing. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services. Notwithstanding the foregoing, We may, during Term of Agreement, reference You as a customer or user of the Services subject to any trademark or logo usage guidelines that You may provide to us.
6.4. Use of Data. We may collect, use and store data concerning the operation of the Services provided such data not reveal Your identity, any user of the Services, contain any personal information or any of Your Confidential Information. Data collection by Us must consider privacy laws of the US and other countries. Any data obtained by You through any collection method, including the Services, is owned exclusively You. In the event We become aware of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal information stored in the Services, We will inform You promptly (providing reasonable details), reasonably cooperate with You and take all reasonably necessary steps within its control to mitigate the breach and prevent it from recurring. In the event We are contacted by a third party about personal information stored in the Services (a “Third-Party Request”), We shall inform You as soon as reasonably possible, providing reasonable details. In the event You are unable to respond to a Third-Party Request using the functionality available to You in the Services, We will provide reasonable assistance.
6.5. Third-Party Open Source Software. The On-Premise software incorporates third-party open source software. All such software must comply with TwinThread’s Third Party Open Source License Policy. Customer may request a list of such third-party software and a copy of the Policy at any time
6.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party or any other party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes of performing under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates solely as needed to perform its obligations under this Agreement, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or administrative proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that the Services will operate in substantial conformity with the then current version of the applicable published documentation provided by Us. For any breach of such warranty, Your sole remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination). Subject to the foregoing, We reserve the right to make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, Services descriptions, etc.) during Your subscription, including to reflect changes in technology, industry practices, and patterns of system use.
8.3. Mutual Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.4 Additional Disclaimers. WE DO NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT WE WILL CORRECT ALL SERVICES ERRORS. WE ARE NOT RESPONSIBLE FOR DATA QUALITY ISSUES OR LOSS OF DATA AND YOU WILL MAINTAIN BACKUP COPIES OF YOUR DATA ON YOUR OWN SYSTEMS. WE ARE NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT OR THIRD PARTY OFFERINGS. WE HAVE NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY OFFERINGS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We will indemnify, defend and hold harmless You against any damages awarded by a court incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against You alleging that Your use of the Services, as contemplated hereunder, infringes any valid patent, copyright or trademark of a third party in the United States. Notwithstanding the foregoing, if We reasonably believe that Your use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then We may, at Our expense and in Our sole discretion: (i) procure for You the right to continue using the Services; (ii) replace the same with other non-infringing software or services of substantially equivalent functions; or (iii) modify the applicable software or Services so that there is no longer any infringement, violation or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Our opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, We may, in Our sole discretion, terminate this Agreement and refund You a prorated amount equal to the pre-paid fees covering the whole months that would have remained, absent such early termination, following the effective date of such early termination. Our foregoing indemnification obligation will not apply: (1) if the Services are modified by any party other than Us, to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other products, applications, or processes not provided by Us, to the extent the alleged infringement is caused by such combination; (3) to Claims arising out of any unauthorized use of the Services; (4) to Claims arising out of any Non-TwinThread Offerings; or (5) to Claims arising out of Your Data. THIS SECTION 9.1 SETS FORTH OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9.2. Indemnification by You. You will indemnify, defend and hold Us and Our Affiliates, and Our and their officers, directors, employees, agents and contractors, harmless from and against any damages and losses incurred in connection with Claims arising from or relating to Your use of Your Data or other use of the Services, in each case except to the extent We are obligated to indemnify You under Section 9.1.
9.3 Procedures. Each party’s indemnity obligations are subject to the following: (i) the indemnified party will promptly notify the indemnifying party in writing of the applicable Claim; (ii) the indemnifying party will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (iii) the indemnified party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT OR APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SERVICES). The foregoing limitations shall not apply to liability for personal injury or arising out of fraud or gross negligence except to the extent such limitations are permitted by applicable law. No action against Us arising out of this Agreement may be brought more than one (1) year after the cause of action has arisen.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Subscriptions. The term of each subscription shall be as specified in Appendix B. Except as otherwise specified, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 7% of the pricing for the applicable Services in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time.
11.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. You authorize us to retain Your Data for 30 days after any termination or expiration of this Agreement. Notwithstanding the foregoing, following any such termination or expiration We have no obligation to maintain Your Data, and have the right to delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited. Upon request and at your sole cost you have the right to receive a copy of your data within 30 days after termination of this Agreement.
11.6. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Who You Are Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.
12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
12.1. General. You are contracting with TwinThread, Inc., a Delaware corporation. You should direct notices under this Agreement to TwinThread, Inc., 105 Monticello Ave, Suite 101, Charlottesville, VA 22902; Attn: Erik Udstuen, Chief Executive Officer.
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the governing law of the State of Virginia without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of federal and state courts sitting in Charlottesville, Virginia.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
13.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
13.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. We may modify this Agreement by updating the Agreement as it appears on Our website. Additionally, the parties may modify or amend this Agreement in a written instrument signed by both parties. Changes or amendments to Your Order Form(s) may be accomplished only in a written instrument signed by both parties. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) this Agreement.
13.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), following written notice to but without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.5. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void or, preferably, ‘blue-penciled’ and scaled back until it is no longer contrary to law, and the remaining provisions of this Agreement will remain in effect.
13.8. Force Majeure Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
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Appendix B: Service Limitations
The TwinThread Services as described in the master agreements are for the listed sites, to the limit of meters as described herein.
Site(s) List, or select ‘All’
Limits to Agreement (Y/N)
If Y, Agreement Meter:_________________________________
Appendix C: Support Obligations
Phone support 5x9 US Eastern Time
- Via: 1-434-218-7856
Online and Email support available 24x7
Support Level Definitions and Response
* P1 Issues Must Be Called In
P1 - Total system is unavailable
P2 - Feature is inoperable and work around is not possible; problem could impact many Users
P3 - Feature is inoperable and work around is possible; operational question
P4 - Informational question; product use question