TwinThread, Inc.
Buyer Terms of Use & Master Subscription Agreement

TTHIS AGREEMENT GOVERNS BUYER'S ACQUISITION AND USE OF SELLER’S PLATFORM SERVICES. THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF (A) THE DATE BUYER SIGNS OR OTHERWISE ACCEPTS THIS AGREEMENT, OR (B) THE DATE ANY USER FIRST ACCESSES OR USES THE PLATFORM SERVICES (THE “EFFECTIVE DATE”).
 
BY ACCEPTING THIS AGREEMENT, EITHER BY SIGNING THIS AGREEMENT OR BY USING THE PLATFORM SERVICES, BUYER AGREES TO THE TERMS OF THIS AGREEMENT. IF BUYER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, BUYER REPRESENTS THAT BUYER HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “BUYER” OR “BUYER'S” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF BUYER DOES NOT HAVE SUCH AUTHORITY, OR IF BUYER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, BUYER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM SERVICES


Buyer may not access the Platform Services if Buyer is Seller’s direct competitor, except with Seller’s prior written consent. In addition, Buyer may not access the Platform Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Table of Contents

1. DEFINITIONS
2. SELLER RESPONSIBILITIES
3. USE OF PLATFORM SERVICES
4. NON-TWINTHREAD OFFERINGS
5. FEES AND PAYMENT FOR PLATFORM SERVICES
6. PROPRIETARY RIGHTS AND LICENSES
7. CONFIDENTIALITY
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9. MUTUAL INDEMNIFICATION
10. LIMITATION OF LIABILITY
11. TERM AND TERMINATION
12. WHO BUYER IS CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13. GENERAL PROVISIONS

APPENDIX A: DATA PROCESSING ADDENDUM

APPENDIX B: TECHNICAL SUPPORT OBLIGATIONS

1. DEFINITIONS

“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 Platform Services” means Seller’s Platform Services that are not generally available to customers.
“Buyer” or “Buyer's” means the company or other legal entity for which Buyer is accepting this Agreement, and Affiliates of that company or entity.
“Buyer Data” means all data, information, and content submitted to, processed by, or generated through the Platform Services on Buyer’s behalf, excluding de-identified or aggregated data that does not identify Buyer or any individual. For clarity, de-identified or aggregated data shall not include data that could reasonably be re-identified or reverse engineered to reveal Buyer’s identity or proprietary operational configurations
“Designated Support Users” means Buyer employees authorized by Buyer to contact TwinThread Technical Support. 
“Hosting Infrastructure” means the computing infrastructure provided or directly controlled by Seller or Buyer that is used to host the Platform Services.
“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, Platform Services or information provided by third parties and not by Seller.  “Non-TwinThread Applications” means the mechanisms by which Buyer consumes or utilizes Non-TwinThread Offerings.
“On-Premise Software” means Software that is installed on hardware owned or arranged by and under the control of Buyer, such as hardware owned by Buyer, a private cloud or a public cloud. On-Premise Software is managed by Buyer. Examples of On-Premise Software include the TwinThread Agent.
“Personal Data” means any information relating to an identified or identifiable natural person, as defined under applicable Data Protection Laws
“Platform Services” means TwinThread’s cloud based platform, available as a subscription and ordered by Buyer under and made available online by Seller. “Platform Services” exclude Non-TwinThread Applications and include On-Premise Software. Platform Services may also include Hosting Infrastructure.
“Quote” means the TwinThread approved form with details of Buyer's purchase including Buyer's subscription term, items purchased, Buyer's fees and any other subscription parameters
“Seller” or “Seller’s” means the TwinThread entity described in Section 12 (Who Buyer Is Contracting With, Notices, Governing Law and Jurisdiction).
“Subscription License” means a license allowing Buyer to access Platform 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.
“TwinThread Technical   Support” means the service available to Designated Support Users
“User” means an individual who is authorized by Buyer to use the Platform Services, for whom Users may include, for example, Buyer's employees, consultants and contractors.

2. SELLER RESPONSIBILITIES

2.1. Provision of Platform Services. Seller will (a) make the Platform Services available to Buyer pursuant to this Agreement, (b) provide Seller’s standard Technical Support for the Platform Services to Buyer at no additional charge, and (c) use commercially reasonable efforts to make the online Platform Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Seller’s reasonable control.
2.2. Seller’s Support Obligations: Seller will provide Support directly to Buyer and Buyer's Designated Support Users.  Access methods and service levels are defined in Appendix B of this Agreement.
2.3. Seller’s Security / Confidentiality Obligations: Seller will maintain appropriate administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Buyer Data, consistent with generally accepted industry standards. Seller’s data protection obligations are further described in Appendix A (Data Processing Addendum). Seller’s security obligations under this Section 2.3 apply solely to systems and Hosting Infrastructure controlled by Seller and do not extend to third-party hosting providers except as expressly set forth in Appendix A (Data Processing Addendum)
2.4. Seller’s Personnel. Seller will be responsible for the performance of Seller’s personnel (including Seller’s employees and contractors) and their compliance with Seller obligations under this Agreement.
2.5. Beta Platform Services. From time to time, Seller may invite Buyer to try Beta Platform Services at no charge. Buyer may accept or decline any such Beta Platform Services in Buyer's sole discretion. Beta Platform Services will be clearly designated as beta, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Platform Services are for evaluation purposes and not for production use, are not considered “Platform Services” under this Agreement, are not supported, and may be subject to additional terms. Seller may discontinue Beta Platform Services at any time in Seller’s sole discretion and may or may not make them generally available. Seller will have no liability for any harm or damage arising out of or in connection with a Beta Service.

3. USE OF PLATFORM SERVICES

3.1. Subscriptions. Unless otherwise provided in Seller’s Quote, (a) Platform Services are purchased as subscriptions, (b) additional consumption or features 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. Platform Services are subject to usage limits.  Unless otherwise specified, the Platform Services may not be applied beyond the limits visible in the Platform tenant or otherwise documented by the Seller.  If Buyer exceeds a contractual usage limit at any time in the subscription period, Seller may work with Buyer to seek to reduce Buyer's usage so that it conforms to that limit. If, notwithstanding Seller’s efforts, Buyer is unable or unwilling to abide by a contractual usage limit, Buyer will provide payment for additional quantities of the applicable Platform Services promptly upon Seller’s request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment). If Buyer is unable or unwilling to provide payment, Seller may suspend services for the overage consumption until such corrections have been made to bring the usage within the subscription limits.

3.3. Reserved.

3.4. Usage Restrictions. Buyer shall not use the Platform Services in a manner that:

(a) violates applicable law;

(b) infringes intellectual property, confidentiality, or privacy rights;

(c) compromises the security, integrity, or availability of the Platform Services;

(d) circumvents contractual usage limits; or

(e) is intended to develop, benchmark, or support a competing product or service.

3.5 Suspension. Seller retains the right to suspend the Platform Services, Buyer's accounts and User accounts in the event of any security threat or Buyer's breach or threatened breach of any of the restrictions in Section 3.4. Seller will terminate any such suspension as soon as Seller determines that the risk underlying the suspension has been mitigated to Seller’s satisfaction and except with regard to a breach by Buyer of Section 3.4, Buyer shall be entitled to a refund of prepaid fees based upon the duration of such suspension. Should any suspension under this Section 3.5 endure for thirty (30) or more days, then Buyer shall have the right to terminate this Agreement, in whole or in part, with only the obligation to pay for the Platform Services received through the effective date of such termination, and Buyer shall be entitled to a refund of any prepaid fees related to Platform Services not performed as of such termination.

3.6 Use of the Platform Services. Buyer is responsible for identifying and authenticating all licensable elements of the Subscription Services for approving access by such elements to the Platform Services, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Buyer's and Buyer's Users’ usernames, passwords and accounts with Seller, Buyer accepts responsibility for the confidentiality and timely and proper termination of user records in Buyer's local (intranet) identity infrastructure or on Buyer's local computers. Seller is not responsible for any harm caused by unauthorized access to the Platform Services due to Buyer's failure to deactivate usernames, passwords or accounts on a timely basis in Buyer's local identity management infrastructure or Buyer's local computers. Buyer is responsible for all activities that occur under Buyer's and Buyer's Users’ usernames, passwords or accounts or as a result of Buyer's or Buyer's Users’ access to the Platform Services.

3.7 License. Seller grants Buyer 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. Seller does not license On-Premise Software on a perpetual basis.

4. NON-TWINTHREAD OFFERINGS

4.1. Non-TwinThread Offerings. The Platform Services may contain optional features designed to interoperate with Non-TwinThread Offerings such as Single Sign On. To use such features, Buyer may be required to obtain access to Non-TwinThread Offerings from their providers, and may be required to grant Seller access to Buyer's account(s) on the Non-TwinThread Offerings. Any acquisition by Buyer of Non-TwinThread Offerings, any exchange of data between Buyer and any provider of a Non-TwinThread Offering, and any governing terms are solely between Buyer and the applicable provider. Seller does not warrant or support Non-TwinThread Offerings. If the provider of a Non-TwinThread Offering ceases to make the Non-TwinThread Offering available for interoperation with the corresponding Platform Services features on reasonable terms, Seller may cease providing those Platform Services features without entitling Buyer to any refund, credit, or other compensation.
4.2 Special Terms. Some Non-TwinThread Offerings are subject to specific terms if Buyer uses them.

5. FEES AND PAYMENT FOR PLATFORM SERVICES

5.1. Fees. Buyer will pay all fees specified in Seller invoices. Fees are based on Platform Services purchased and not actual usage: (i) payment obligations are non-cancelable, and fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. Buyer will provide Seller with a valid purchase order or alternative document reasonably acceptable to Seller. Seller will invoice Buyer in advance and otherwise in accordance with the relevant document. Invoiced charges are due per the applicable payment schedule
5.3. Suspension of Platform Services and Acceleration. If any amount owed by Buyer under this or any other agreement for the Platform Services is 60 or more days overdue, or if Buyer has exceeded their subscription limits for more than 60 days, Seller may, without limiting Seller’s other rights and remedies, accelerate Buyer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Seller’s Platform Services to Buyer until such amounts are paid in full. Seller will give Buyer at least 20 days prior notice that Buyer's account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending Platform Services to Buyer.
5.4. Payment Disputes. Seller will not exercise Seller’s rights under 5.3 (Suspension of Platform Services and Acceleration) above if Buyer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.5. Taxes. Seller’s 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”). Buyer is responsible for paying all Taxes associated with Buyer's purchases hereunder. If Seller has the legal obligation to pay or collect Taxes for which Buyer is responsible under this Section, Seller will invoice Buyer and Buyer will pay that amount unless Buyer provides Seller with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Seller is solely responsible for taxes assessable against Seller based on Seller income, property and employees.
5.6. Future Functionality. Buyer agrees that Buyer's purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Seller regarding future functionality or features.

6. PROPRIETARY RIGHTS AND LICENSES

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Seller and Seller’s licensors reserve all of Seller’s/their right, title and interest in and to the Platform Services, including all of Seller’s/their related intellectual property rights. No rights are granted to Buyer hereunder other than the right to receive and use Platform Services as expressly set forth herein.
6.2. License by Buyer to Host Buyer Data and Applications. Buyer grants Seller and Seller’s Affiliates a worldwide, limited-term license to host, configure, copy, transmit and display Buyer Data as necessary for Seller to provide the Platform Services in accordance with this Agreement. Subject to the limited licenses granted under this Agreement and Appendix A, Seller acquires no right, title or interest from Buyer or Buyer's licensors under this Agreement in or to Buyer Data or any Non-TwinThread Application.
6.3. License by Buyer to Use Feedback; Marketing. Buyer grants to Seller and Seller’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Buyer or Users relating to the operation of the Platform Services. Seller may reference Buyer as a customer or user of the Platform Services, subject to any trademark or logo usage guidelines provided by Buyer in writing.
6.4. Use of Data.  Seller may collect, use, and store data concerning the operation of the Platform Services, provided such data does not reveal Buyer's identity, any user of the Platform Services, or contain any personal information or any of Buyer's Confidential Information. Data collection by Seller must consider privacy laws of the United States and other countries.
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. Buyer may request a list of such third-party software and a copy of the Policy at any time
6.6 Artificial Intelligence. The Platform Services may include artificial intelligence or machine learning features that generate insights solely from Buyer Data. Seller does not use Buyer Data to train generalized or cross-customer models. Any outputs generated by such features are informational and do not replace Buyer’s independent judgment, and Buyer remains solely responsible for decisions made using such outputs.

7. CONFIDENTIALITY

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. Buyer’s Confidential Information includes Buyer Data, and Seller’s Confidential Information includes the Platform Services and related non-public information.  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 applicable transaction document 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.
This Section 7.3 does not apply to requests for Personal Data, which are governed exclusively by Appendix A (Data Processing Addendum)
7.4 Data Processing. To the extent Seller Processes Personal Data on behalf of Buyer in connection with the Platform Services, such Processing shall be governed by the Data Processing Addendum attached as Appendix A, which is hereby incorporated into and made part of this Agreement by reference.

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. Seller’s Warranties. Seller warrants that the Platform Services will operate in substantial conformity with the then-current version of the applicable published documentation provided by Seller. For any breach of such warranty, Buyer's sole remedies are those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination). Subject to the foregoing, Seller reserves the right to make changes or updates to the Platform Services during Buyer's subscription. For the avoidance of doubt, Seller does not warrant the availability, performance, or uptime of any third-party hosting infrastructure not controlled by Seller
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 PLATFORM 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 INCLUDING PROVIDERS OF HOSTING INFRASTRUCTURE.
8.4 Additional Disclaimers. SELLER DOES NOT WARRANT THAT THE PLATFORM SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT SELLER WILL CORRECT ALL PLATFORM SERVICES ERRORS. SELLER IS NOT RESPONSIBLE FOR DATA QUALITY ISSUES AND BUYER WILL MAINTAIN BACKUP COPIES OF BUYER DATA ON BUYER'S OWN SYSTEMS. SELLER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE PLATFORM SERVICES THAT ARISE FROM BUYER'S CONTENT OR THIRD PARTY OFFERINGS. SELLER HAS NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY OFFERINGS. BUYER ACKNOWLEDGES THAT ITS REMEDIES UNDER THIS AGREEMENT ARE LIMITED AS SET FORTH HEREIN.

9. MUTUAL INDEMNIFICATION

9.1. Indemnification by Seller. Seller will indemnify, defend and hold harmless Buyer against any damages awarded by a court or amounts paid pursuant to a settlement approved by Seller incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Buyer alleging that Buyer’s use of the Platform Services, as contemplated hereunder, infringes any valid patent, copyright or trademark of a third party in the United States.  Notwithstanding the foregoing, if Seller reasonably believes that Buyer's use of any portion of the Platform Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Seller may, at Seller’s expense and in Seller’s sole discretion: (i) procure for Buyer the right to continue using the Platform Services; (ii) replace the same with other non-infringing software or Platform Services of substantially equivalent functions; or (iii) modify the applicable software or Platform 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 Platform Services. If, in Seller’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Seller may, in Seller’s sole discretion, terminate this Agreement and refund Buyer 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. Seller’s foregoing indemnification obligation will not apply: (1) if the Platform Services are modified by any party other than Seller, to the extent the alleged infringement is caused by such modification; (2) if the Platform Services are combined with other products, applications, or processes not provided by Seller, to the extent the alleged infringement is caused by such combination; (3) to Claims arising out of any unauthorized use of the Platform Services; (4) to Claims arising out of any Non-TwinThread Offerings; or (5) to Claims arising out of Buyer Data. THIS SECTION 9.1 SETS FORTH SELLER’S SOLE LIABILITY AND BUYER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9.2. Indemnification by Buyer. Buyer will indemnify, defend and hold harmless Seller and Seller’s Affiliates, and Seller and their respective officers, directors, employees, agents and contractors, against any damages awarded by a court or amounts paid pursuant to a settlement approved by Buyer incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Seller arising from or relating to (i) Buyer Data, or (ii) Buyer’s use of the Platform Services in violation of this Agreement or applicable law, except to the extent Seller is obligated to indemnify Buyer 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 BUYER TO SELLER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY.
THE FOREGOING LIMITATION WILL NOT APPLY TO BUYER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PLATFORM SERVICES). NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIMITATION OR EXCLUSION IS PROHIBITED BY APPLICABLE LAW.
10.2 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.
10.3 Injunctive Relief for Confidentiality
NOTWITHSTANDING SECTION 10.1 OR 10.2, EACH PARTY ACKNOWLEDGES THAT A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS MAY CAUSE IRREPARABLE HARM FOR WHICH MONETARY DAMAGES MAY BE INADEQUATE. ACCORDINGLY, IN THE EVENT OF ANY SUCH BREACH OR THREATENED BREACH, THE NON-BREACHING PARTY SHALL BE ENTITLED TO SEEK EQUITABLE OR INJUNCTIVE RELIEF, WITHOUT THE REQUIREMENT TO POST BOND OR PROVE ACTUAL DAMAGES. FOR CLARITY, ANY MONETARY DAMAGES REMAIN SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION 10.
10.4 Intellectual Property Remedies
THE PARTIES AGREE THAT THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 (MUTUAL INDEMNIFICATION) STATE THE SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION ARISING OUT OF THE PLATFORM SERVICES. ANY LIABILITY ARISING FROM SUCH CLAIMS SHALL REMAIN SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 10.
10.5 AI OUTPUTS AND ANALYTICS DISCLAIMER
BUYER ACKNOWLEDGES THAT THE PLATFORM SERVICES MAY INCLUDE ANALYTICS, PREDICTIONS, OR OTHER AI-ENABLED OUTPUTS THAT ARE PROVIDED FOR INFORMATIONAL AND DECISION-SUPPORT PURPOSES ONLY. BUYER IS SOLELY RESPONSIBLE FOR EVALUATING, VALIDATING, AND DETERMINING THE APPROPRIATENESS OF ANY SUCH OUTPUTS FOR BUYER’S USE CASES, INCLUDING COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS, AND INTERNAL POLICIES.
SELLER MAKES NO WARRANTY AND DISCLAIMS ALL LIABILITY ARISING FROM BUYER’S USE OF OR RELIANCE ON ANY SUCH OUTPUTS, AND ANY CLAIM RELATED THERETO SHALL BE SUBJECT TO THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 10.

11. TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the date Buyer first accepts 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 agreed in writing by the parties and shall be limited to the subscription term specified in the order form or other mutually agreed transaction document.
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. Termination of this Agreement will terminate all active subscriptions as of the effective date of termination
11.4. Refund or Payment upon Termination. If Buyer terminates this Agreement pursuant to Section 11.3, Seller will refund any prepaid fees covering the unused portion of the subscription term. If Seller terminates this Agreement pursuant to Section 11.3, Buyer will remain responsible for all unpaid fees for the remainder of the subscription term. In no event will termination relieve Buyer of its obligation to pay fees accrued prior to the effective date of termination
11.5. If Seller provides Hosting Infrastructure, Seller will make Buyer Data available for retrieval for thirty (30) days following expiration or termination of this Agreement (the “Retrieval Period”). Upon Buyer’s written request during the Retrieval Period, Seller will provide a copy of Buyer Data in a commercially reasonable format and may charge reasonable fees for assistance beyond standard self-service export. After the Retrieval Period, Seller will delete Buyer’s Personal Data in accordance with Section 11.7 and Appendix A (Data Processing Addendum) and will delete remaining Buyer Data unless retention is required by applicable law.
11.5.1 If Buyer provides Hosting Infrastructure, Buyer will provide Seller reasonable access for up to thirty (30) days following expiration or termination of this Agreement to remove or disable Seller-provided software and materials. Upon completion, Buyer will cease all use of the Platform Services and delete Seller Confidential Information, except as required by applicable law.
11.6 Data Return and Deletion. Upon expiration or termination of this Agreement, Seller will delete or return Buyer Personal Data in accordance with Appendix A (Data Processing Addendum). Seller will have no obligation to retain Buyer Data beyond the periods specified therein, except as required by applicable law.
11.7. Surviving Provisions. The Sections titled “Fees and Payment for Platform Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Data Return and Deletion,” “Who Buyer Is Contracting With, Notices, Governing Law and Jurisdiction,” and “General Provisions” will survive any termination or expiration of this Agreement.

12. WHO BUYER IS CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

12.1. General. Buyer is contracting with TwinThread, Inc., a Delaware corporation. Buyer should direct notices under this Agreement to TwinThread, Inc., 300 East Main Street Suite 209, Charlottesville, VA 22902; Attn: Erik Udstuen, Chief Executive Officer.
12.2. Except as otherwise specified in this Agreement, all notices under this Agreement must be in writing and will be deemed given: (i) upon personal delivery, (ii) on the second business day after mailing, or (iii) on the first business day after sending by email, provided that email will not be sufficient for notices of termination or indemnifiable claims. Billing-related notices to Buyer will be addressed to Buyer’s designated billing contact, and all other notices to Buyer will be addressed to Buyer’s designated administrative contact.
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 Platform Services may be subject to export control and economic sanctions laws and regulations of the United States and other applicable jurisdictions. Buyer represents that it is not located in, and will not permit access to or use of the Platform Services from, any country or region subject to comprehensive sanctions or embargoes under applicable law, and that neither Buyer nor its Users are listed on any government restricted party list. Buyer will comply with all applicable export and sanctions laws in connection with its use of the Platform Services.
13.2. Anti-Corruption. Buyer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Seller’s 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 Buyer learns of any violation of the above restriction, Buyer will use reasonable efforts to promptly notify Seller.
13.3. Entire Agreement and Order of Precedence. This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties. Buyer purchase order terms or similar documents will not apply, even if referenced. In the event of a conflict, the following order of precedence will apply: (1) a mutually executed amendment 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 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, Seller will refund to Buyer any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and ensure to the benefit of the parties, their respective successors and permitted assigns. Any assignment in violation of this Section will be null and void
13.5. 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.
13.6. No Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.8. 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, and the remaining provisions of this Agreement will remain in effect.
13.9. 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.

Master Subscription Agreement Acceptance

TwinThread (Seller)

Name______________________

Title_______________________

Signature____________________

Date________________________

Company (Buyer)

Name______________________

Title_______________________

Signature____________________

Date_____________________

APPENDIX A: DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) forms part of the Agreement between TwinThread, Inc. (“Seller”) and Buyer and applies solely to the extent required by Applicable Data Protection Laws.

1. Roles of the Parties
For purposes of this Data Processing Addendum (“DPA”), Buyer acts as the Controller of Personal Data and Seller acts as a Processor on behalf of Buyer. Each party shall comply with its respective obligations under applicable Data Protection Laws.

2. Processing Instructions
Seller shall Process Personal Data solely in accordance with:
●      this Agreement,
●      this DPA, and
●      Buyer’s documented instructions as reflected in Buyer’s use of the Platform Services.
Buyer represents that such instructions comply with Applicable Data Protection Laws.

3. Security Measures
Seller shall implement and maintain appropriate technical and organizational measures designed to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, consistent with industry-standard security practices and Seller’s information security program.

4. Subprocessors
Buyer authorizes Seller to engage Subprocessors to Process Personal Data on Buyer’s behalf. Seller shall remain responsible for the acts and omissions of its Subprocessors to the extent required by applicable Data Protection Laws. Seller shall provide Buyer with reasonable notice of any material changes to its Subprocessors. Seller’s responsibility for Subprocessors is limited to compliance with the requirements of this Appendix A and does not constitute responsibility for the availability, performance, or uptime of third-party hosting infrastructure.

5. Data Subject Requests
Taking into account the nature of the Processing, Seller shall provide commercially reasonable assistance to Buyer to enable Buyer to respond to Data Subject requests under applicable Data Protection Laws. Seller may charge reasonable fees for assistance that requires material effort beyond standard functionality.

6. Personal Data Breach
Seller shall notify Buyer without undue delay after becoming aware of a confirmed Personal Data Breach involving Buyer Personal Data and provide reasonably available information sufficient to allow Buyer to meet its obligations under applicable Data Protection Laws. Seller shall take commercially reasonable steps to mitigate the effects of the Personal Data Breach and prevent its recurrence.

7. Third-Party Requests.
If Seller receives a legally binding request from a third party for Buyer’s Personal Data, Seller shall, to the extent permitted by law, notify Buyer prior to disclosing such Personal Data and provide Buyer with reasonable information about the request. Seller shall disclose only the minimum amount of Personal Data required to comply with the request.

8. Data Return and Deletion
Upon expiration or termination of the Agreement, Seller shall delete or return Buyer Personal Data in accordance with Buyer’s instructions and this DPA, unless retention is required by applicable law. Seller will have no obligation to retain Personal Data beyond the periods specified herein.

9. Liability and Precedence
The limitations and exclusions of liability set forth in the Agreement apply to this DPA, except as expressly stated herein. In the event of a conflict between this DPA and the Agreement, this DPA shall control solely with respect to the Processing of Personal Data.

APPENDIX B: TECHNICAL SUPPORT OBLIGATIONS

Standard Business Hours

M-F 8AM-6PM EST, excluding Canadian and US public holidays

Access

• Via the TwinThread Product: https://app.twinthread.com - RECOMMENDED
• Via: support@twinthread.com
• Via Website: https://Issues.twinthread.com
• P1 (Emergency) Only
  • By Phone - 1-434-218-7856, press ‘3’

Support Level Definitions and Response: 

The Technical Support Team will use commercially reasonable efforts to respond to customer cases submitted during Standard Business Hours in accordance with the prioritization framework set forth below. Depending on the level of priority of the Issues, the team will approach initial response per the table and definitions below:

Priority: describes the severity of the issue and its impact on operations
 
Initial Response: describes the Technical Support teams’ first response following initial notification of the issue
 
Work Approach: TwinThread’s issue resolution process timing. The work approach does not guarantee a time frame for correcting the issue, but it indicates the effort we will expend to correct or alleviate it.
 
Update Frequency: the frequency of status updates provided to customers until the issue is corrected.