This Subscription Agreement ("Agreement") is between Twigex SIA, with offices at 37 Vangazu Street, Suite 37, Riga, LV-1024 (or, if a different corporate entity is listed as "Twigex" on an Order Form, "Twigex"), and the individual or entity signing or electronically accepting this Agreement or any Order Form that references this Agreement ("Customer").
The Agreement is entered into on the earlier of: (a) Customer clicking "Agree" or "Yes" to the terms of this Agreement to gain initial access to, or use of, the Software; (b) Twigex and Customer agreeing to an Order Form referencing this Agreement, or (c) Customer is given access to the Software ("Effective Date").
Individual Signing on Behalf of Company. If the individual accepting this agreement is doing so on behalf of an enterprise or other legal entity, they represent that they have the authority to bind such enterprise and its affiliates to these terms and conditions. In this case, the term "customer" shall refer to the enterprise and its affiliates.
Individual Not Authorized to Sign on Behalf of Company. If the individual accepting this agreement does not have the authority to do so or does not agree with the terms and conditions, they must not accept this agreement and may not use the services or software.
Individual Signing on Behalf of Individual But Using Company Email. If the individual accepting this agreement is using an enterprise email address to do so, they acknowledge and agree that the use of such enterprise email address will establish a Twigex account associated with the applicable enterprise. This account, including its control and data/information, can and will be transferred entirely to the enterprise upon request, without notice or liability to the individual. To ensure no loss of personal content, Twigex strongly recommends establishing a Twigex account tied to a personal email address.
2.1 This Agreement establishes a framework that will enable Twigex to provide Customer with the Software. Software is provided as part of a Subscription, as described in Appendix 1. Software provided as a hosted solution, or Software-as-a-Service (“SaaS Software”), shall be subject to the attached Appendix 2 entitled “Software as a Service (SaaS) Offering”.
3.1 This Agreement applies to Software that Customer licenses directly from Twigex, a Twigex Affiliate, or from an Authorized Partner. For clarity, if Customer purchases from an Authorized Partner, Twigex will have no obligations to Customer outside of this Agreement, unless otherwise agreed in writing between Customer and Twigex.
3.2 Unless otherwise agreed to between Customer and Twigex in writing, the terms of this Agreement shall govern any and all use of the Software. Purchases of Software may take place by either:
3.3 Twigex and Customer agree that Free Software may be modified or updated without notice, and may have limited functionality, features, maintenance, support, and other limitations not present in purchased Software. Notwithstanding the "Warranty" and "Indemnification" sections below, Free Software and Software offered on a trial basis are provided "as-is" without any warranty, and Twigex shall have no indemnification obligations or liability of any type with respect to such Free Software.
4.1 The Agreement begins on the Effective Date and remains in effect until it is terminated according to this Section 4.
4.2 The Subscription Term begins on the Subscription Start Date and lasts for the length of time indicated on the Order Form (the "Initial Term"). It will then automatically renew for successive twelve (12) month terms (each a "Renewal Term") unless either party gives notice of their intention not to renew thirty (30) days prior to the end of the current Subscription Term. Customers have the right to opt-out of such renewal from within the Software, starting from the Subscription Start Date up until thirty (30) days before the Subscription Term ends. Subscriptions must be used during the Subscription Term and any unused Subscriptions will expire at the end of the Subscription Term.
4.3 Either party may terminate this Agreement and any Order Form executed between them if:
4.4 Twigex may suspend delivering Subscriptions at its sole discretion if Customer breaches the terms of Section 6 (Payment of Fees) until the breach is remedied.
4.5 Unless stated otherwise, terminating this Agreement will not affect any Subscriptions currently being delivered. This Agreement will remain in full force until the expiration of the then-current Subscription Term. Termination will not relieve Customer of their obligation to pay any Fees due to Twigex for the period prior to the effective date of termination. The terms and conditions of this Agreement will apply to any Renewal Term(s). Unless otherwise stated in an Order Form, Website purchase, or other written agreement between the Parties, Twigex’s then-current List Price will apply to any such Renewal Term(s). Twigex reserves the right to increase fees for any Renewal Term(s) for their products and services, including the Software and Supplemental Services.
Customers must not, and must not allow any third party to:
5.2 Nothing in this Agreement shall prevent Customer from using the Software for benchmark testing or comparative analysis. Customer must comply with all applicable data privacy and security laws and have appropriate technological, administrative, and physical controls in place to ensure compliance.
5.3 In addition to the obligations set forth in Section 5.4, and subject to the rights set forth in Section 5.7, Customer must ensure the data collected to use the Software remains unchanged.
5.4 In accordance with this Agreement, Twigex has the right to verify electronically (or otherwise) and generate reports related to Customer's installation, access and use of the Software to ensure compliance. Customer must maintain Customer Records during the term of this Agreement and for two years afterwards. Twigex may, with thirty days' prior written notice to Customer, hire an independent third-party auditor to audit the Customer Records to verify the amounts payable under this Agreement with respect to Customer's usage of the Software. If an audit reveals underpayment, Customer must promptly pay the deficiency to Twigex plus late fees pursuant to Section 6. Twigex will bear the cost of the audit unless the audit reveals underpayment by more than 5%, in which case Customer must promptly pay Twigex for the reasonable costs of the audit.
5.5 Customer will be responsible for the following:
5.6 Subject to this Agreement and the applicable Order Form, Twigex will provide Customer Support to Customer for the Subscriptions during the Subscription Term, at no additional cost. Details regarding Customer Support can be found in Appendix 1 and may be updated periodically.
5.7 Portions of the Software are subject to underlying open source licenses. This Agreement and applicable Appendices set out the rights and obligations associated with Subscriptions and Software, and do not limit Customer's rights to software code under the terms of an open source license.
5.8 Customer acknowledges and agrees that:
6.1 With respect to purchases direct from Twigex, all web-portal purchase Fees shall be due and payable immediately.
6.2 With respect to purchases direct from Twigex, the Order Form shall: (i) reference this Agreement; (ii) state the Subscription Term(s) and Subscription(s) that are being purchased; and (iii) state the Fees due for the applicable Subscription(s).
6.3 With respect to purchases direct from Twigex, such Order Form is hereby incorporated into this Agreement by reference. The parties hereby agree to the terms and conditions stated within this Agreement and those found within an Order Form to the exclusion of all other terms. The parties agree that all terms stated within a Purchase Order, or other similar document, shall be null and void and are expressly rejected.
6.4 With respect to purchases direct from Twigex, Customer will pay Twigex the applicable Fees, including those for Supplemental Services, without any right of set-off or deduction. All payments will be made in accordance with the payment details stated within the applicable Order Form. If not otherwise specified: (i) Twigex (or applicable Twigex Affiliate) will invoice Customer for the Fees upon the Acceptance of an Order Form; and (ii) all Fees will be due and payable within thirty (30) days of Customer’s receipt of an invoice. Except as expressly set forth in this Agreement, all Fees paid or due hereunder (including prepaid amounts) are non-refundable, and no credit will be due, including without limitation if this Agreement is terminated in accordance with Section 4 herein.
6.5 During the Subscription Term, Customer may, subject to this Agreement, activate and use Add-On Users. For the avoidance of doubt, Customer shall not have the right to report less than the number of Users originally purchased under the Subscription, and all Add-On Users shall be co-termed to the underlying Subscription Term.
6.6 With respect to purchases direct from Twigex, at the end of each three (3) month period, commencing upon the Subscription Start Date, (referred to herein as “Quarter” or “Quarterly”) during the Subscription Term, Twigex will: (i) per Section 5.3, generate a report of Add-On User(s) deployed during the Quarter (“Quarterly Usage Report”), and (ii) invoice Customer on a prorated basis for the remaining portion of the Subscription Term, with respect to the Add-On User(s) activated and/or used during the Quarter as captured by the Quarterly Usage Report. For the avoidance of doubt, Add-On User(s) will not be invoiced for the Quarter in which they were activated and/or used. Upon expiration of the Subscription Term, Customer’s renewal of the Software shall be for either: (x) the amount agreed to between Customer and Twigex in an Order Form; or (y) the number of active Users present in the Twigex Subscription as of the day of Customer’s renewal. Add-On User(s) that have been identified within the Quarterly Usage Report, shall be considered due and payable in accordance with this Section 6. In the event a Quarterly Usage Report cannot be generated, the Customer shall report and pay for such Overage Users (as defined below) in compliance with Section 6.7. Unless the parties agree to an Effective Price that is less than the List Price, as set forth in an Order Form or Website purchase, Add-On Users will be invoiced at the List Price in the most recent Order Form or Website purchase.
6.7 In the event a Customer procures Software from an Authorized Partner, or, Twigex is unable to, (i) verify and generate a Quarterly Usage Report, and/or (ii) collect payment(s) with respect to Quarterly Add-Ons as provided in the Quarterly Usage Report, Customer shall be obligated to, (a) provide a report no later than twelve (12) months following the Subscription Effective Date (“Annual Report”) of all Users from said Subscription Term (“Overage Users”), and (b) be obligated to pay for such Overage Users, for the previous twelve (12) months, at the then current List Price for the Twigex Software. Overage Users subject to the Annual Report shall not include any pro-ration, set-off and/or deduction to account for term of use, or otherwise. Overage Users that have been identified in an Annual Report shall be considered due and payable in accordance with Section 6. In the event Overage Users are outstanding upon the expiration of a Subscription Term, Customer shall be obligated to pay for such Overage Users in order to renew the Software.
6.8 Any unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of any and all taxes or duties, now or hereafter imposed by any governmental authority, including, but not limited to any national, state or provincial tax, sales tax, value-added tax, property and similar taxes, if any. Fees under this Agreement shall be paid without any withholding or deduction. In the case of any deduction or withholding requirements, Customer will pay any required withholding itself and will not reduce the amount to be paid to Twigex on account thereof.
7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information”). Such Confidential Information shall be either: (i) identified as confidential at the time of disclosure; or (ii) the nature of such information and/or the manner of disclosure are such that a reasonable person would understand it to be confidential. Without limiting the foregoing, and subject to applicable open source license(s), the Software is considered Twigex Confidential Information.
7.2 The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information; (ii) to give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement; and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information.
7.3 The Disclosing Party agrees that Section 7.2 will not apply with respect to any information for which the Receiving Party can document: (i) is or has become readily publicly available without restriction through no fault of the Receiving Party; (ii) was received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information; or (iii) was rightfully in possession of such information without restriction prior to its disclosure by the Disclosing Party.
7.4 Each party’s obligations under this Section 7 shall survive termination of this Agreement for a period of three (3) years.
7.5 Customer acknowledges that any actual or threatened breach of this Section 7 will constitute immediate, irreparable harm to the Disclosing Party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is taken by the Disclosing Party to enforce its rights under this Section 7, the Disclosing Party will be entitled to recover its costs and attorney's fees from the Receiving Party.
7.6 Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of this Section 7 and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.
7.7 Both parties will have the right to disclose Confidential Information in connection with: (i) a required filing to a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order), or (ii) disclosures made to potential investors or acquirers, provided that at all times the Confidential Information shall be protected in a manner no less stringent as set forth in this Section 7.
7.8 Twigex may collect data with respect to, and report on the aggregate response rate and other aggregate measures of, the Software performance and Customer’s usage of the Software. Notwithstanding the foregoing, Twigex will not identify Customer to any third party as the source of any such data without Customer’s prior written consent.
8.1 Subject to the terms and conditions of this Agreement, Twigex hereby grants to Customer and its Affiliates a limited, non-exclusive, non-transferable, non-sublicensable license for Customer’s and its Affiliates’ Users to use, reproduce, modify, prepare derivative works based upon, and display the code of Software at the tier level selected by Customer, or as set forth in an Order Form, solely for: (i) its internal use in connection with the development of Customer’s and/or its Affiliates’ own software; and (ii) the number of Users for which Customer has paid Twigex. Notwithstanding anything to the contrary, Customer agrees that Twigex and/or its licensors (as applicable) retain all right, title and interest in and to all Software incorporated in such modifications and/or patches, and all such Software may only be used, copied, modified, displayed, distributed, or otherwise exploited in full compliance with this Agreement, and with a valid Subscription for the correct number of Users.
8.2 Except as expressly set forth herein, Twigex (and its licensors, where applicable) will retain all intellectual property rights relating to the Software and any suggestions, ideas, enhancement requests, feedback, or other recommendations provided by Customer, its Affiliates, Users or any third party relating to the Software (herein referred to as “Feedback Materials”), which are hereby assigned to Twigex. For the avoidance of doubt, Feedback Materials shall not include Customer Confidential Information or intellectual property owned by Customer. This Agreement does not constitute a sale of the Software and does not convey to Customer any rights of ownership in or related to the Software or any other intellectual property rights.
8.3 Customer shall not remove, alter or obscure any of Twigex’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Twigex’s (or its licensors’) ownership or contribution from the Software.
8.4 Customer represents it shall be responsible for, and retain all right, title, and interest in and to, Customer Content, subject to a limited license to Twigex necessary for Twigex’s provision of the Software as contemplated hereunder.
8.5 Customer grants to Twigex the right to use Customer’s company name and logo in marketing and promotional materials, subject to Customer’s brand and trademark guidelines as provided to Twigex from time to time.
9.2 During the Subscription Term, Twigex represents and warrants that: (i) it has the authority to enter into this Agreement, (ii) the Software shall be provided in a professional and workmanlike manner by qualified personnel; and (iii) it will use commercial industry standard methods designed to ensure the Software provided to Customer does not include any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or User data.
9.2 If at any time Twigex fails to comply with the warranties in this Section 9, Customer may promptly notify Twigex in writing of any such noncompliance. Twigex will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting the non-compliance is not established during such period, Customer may terminate this Agreement and receive a prorated refund for the unused portion of the Subscription Term as its sole and exclusive remedy for such noncompliance.
9.2 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SUPPLEMENTAL SERVICES AND CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. TWIGEX AND ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10.1 Twigex will defend Customer from any claim, demand, suit or proceeding made or brought against Customer by a third party alleging the Software (excluding Free Software as set forth in Section 3.3) provided by Twigex infringes or misappropriates such third party’s patent or copyright (a “Customer Claim”). Twigex will indemnify and hold Customer harmless from any damages, reasonable attorneys’ fees and costs finally awarded against Customer as a result of a Customer Claim, or for amounts paid by Customer under a settlement approved (in writing) by Twigex, provided Customer: (i) promptly notifies Twigex in writing of the Customer Claim; (ii) gives Twigex all reasonable assistance at Twigex’s expense; and (iii) gives Twigex sole control over defense and settlement thereof except that Twigex may not settle any Customer Claim unless it unconditionally releases Customer of all liability. The foregoing obligations do not apply if: (v) the Customer Claim arises from Software or any part thereof that is modified by Customer, or at Customer’s direction, after delivery by Twigex; (w) the Customer Claim arises from the use or combination of the Software or any part thereof with other products, processes or materials not provided by Twigex where the alleged infringement relates to such combination; (x) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (y) the Customer Claim arises from software not created by Twigex, or (z) the Customer Claim results from Customer’s breach of this Agreement and/or applicable Order Forms. Notwithstanding the foregoing, in the event of a Customer Claim, Twigex, at its discretion, option and expense, reserves the rights to: (a) modify the Software to make it non-infringing provided there is no material loss of functionality; (b) settle such claim by procuring the right for Customer to continue using the Software; or (c) if in Twigex’s reasonable opinion neither (a) or (b) are commercially feasible, terminate the license to the Software and refund a pro-rata portion of the amount paid by Customer for such Software for the unused portion of the Subscription Term.
10.2 Customer will defend Twigex and its Affiliates against any claim, demand, suit or proceeding made or brought against Twigex by a third party alleging: (i) that any Customer Content or Customer’s use of Customer Content with the Software or any software (or combination of software) provided by Customer and used with the Software, infringes or misappropriates such third party’s intellectual property rights, or (ii) arising from Customer’s use of the Software in an unlawful manner or in violation of the Agreement, the applicable documentation, or Order Form (each a “Twigex Claim”). Customer will indemnify Twigex from any damages, reasonable attorneys’ fees and costs finally awarded against Twigex as a result of, or for any amounts paid by Twigex under a settlement approved (in writing) by Customer of a Twigex Claim, provided Twigex: (x) promptly gives Customer written notice of the Twigex Claim, (y) gives Customer sole control of the defense and settlement of the Twigex Claim (except that Customer may not settle any Twigex Claim unless it unconditionally releases Twigex of all liability), and (z) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Twigex Claim arises from Twigex’s breach of this Agreement and/or applicable Order Form.
10.3 This Section 10 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for any third-party claim described in this section.
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
11.2 11.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF EACH PARTY AND ITS AFFILIATES AND LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT PAID BY CUSTOMER OR ITS AFFILIATES HEREUNDER IN THE ONE YEAR PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT LIMIT CUSTOMER'S OR ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “PAYMENT OF FEES” SECTION ABOVE.
12.1 Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of Controlled Subject Matter, in violation of any restrictions, laws or regulations of the European Union or foreign agency or authority.
12.2 Without limiting the foregoing, Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to Embargoed Countries, or to or by a national or resident thereof. The lists of Embargoed Countries are subject to change without notice. Use of the Software is representation and warranty that the Customer, Customer personnel, or Contractors are not located in, under the control of, or a national or resident of an Embargoed Country.
12.3 The Controlled Subject Matter may use or include encryption technology.
12.4 Any software and documentation provided by Twigex are “commercial items” and are deemed to be “commercial computer software” and “commercial computer software documentation.”
13.1 Twigex and Customer will not be liable for any default or delay in the performance of their respective non-monetary obligations, to the extent that such default or delay is caused, directly or indirectly, by fire, flood, earthquake, explosions, elements of nature, acts of God, acts or regulations of government bodies, nuclear, chemical or biological contamination, court orders arising out of circumstances other than a breach of this Agreement by the Non-performing Party (as defined below), acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts or labor difficulties, epidemics or by any other event or circumstance that is beyond the reasonable control of Twigex or Customer. The party that is unable to perform shall be referred to as the “Non-performing Party”. Such an event or circumstance giving rise to the default or delay is hereby referred to as a “Force Majeure Event”.
13.2 The Non-performing Party will be excused from any further performance of the non-monetary obligations affected by such Force Majeure Event for as long as such Force Majeure Event continues and the Non-performing Party continues to use commercially reasonable efforts to resume performance.
13.3 Except as expressly excused in this Section 13, each party will continue to perform its respective obligations under this Agreement during a Force Majeure Event.
14.1 Without limiting Twigex’s obligations as stated in Section 7 (Confidentiality), Twigex shall be responsible for establishing and maintaining a commercially reasonable information security program that is designed to: (i) ensure the security and confidentiality of the Customer Content; (ii) protect against any anticipated threats or hazards to the security or integrity of the Customer Content; (iii) protect against unauthorized access to, or use of, the Customer Content; and (iv) ensure that all subcontractors of Twigex, if any, comply with all of the foregoing. In no case shall the safeguards of Twigex’s information security program be less stringent than the information security safeguards used by Twigex to protect its own commercially sensitive data. Customer shall use commercially reasonable security and anti-virus measures when accessing and using the Software and to prevent unauthorized access to, or use of the Software, and notify Twigex promptly of any such unauthorized access or use of which it becomes aware.
14.2 With respect to the protection of information, the Twigex Privacy Statement located here https://twigex.com/privacy, shall apply.
14.3 The parties acknowledge and agree that, (i) the Software is not designed for the purpose(s) of storing, processing, compiling or transmitting Sensitive Data (as defined herein), and (ii) Customer shall not use the Software, or otherwise provide to Twigex without prior written consent, Sensitive Data under this Agreement. “Sensitive Data” means: (a) special categories of data enumerated in European Union Regulation 2016/679 or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data or financial account information, including bank account numbers or other personally identifiable financial information; (d) social security numbers, driver’s license numbers, or other government identification numbers; (e) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (“GLBA”) (or related rules or regulations); or (f) any data similar to the above protected under foreign or domestic laws. Therefore, notwithstanding anything else in this Agreement, Twigex has no liability for Sensitive Data processed in connection with Customer’s use of the Software.
14.4 To the extent Customer has Users of the SaaS Software located in the People’s Republic of China, Customer represents and warrants that it has complied with all requirements of a “personal information processor,” as that term is defined under the Personal Information and Protection Law of the People’s Republic of China (“PIPL”). This includes the requirement to provide adequate notice and obtain all necessary consents from relevant Users prior to the overseas transfer and processing of Personal Data by Twigex, as well as onward transfers and processing by Twigex’s third-party subprocessors. In addition, Customer warrants, where required, that it will not transfer Personal Data without a security assessment, as described in PIPL, from the Cyberspace Administration of China. Nothing in this section limits Twigex or Customer’s obligations under the DPA.
15.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.2 This Agreement is not assignable, transferable or sublicensable by either party without the other party’s prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all, or substantially all, of its business or assets to which this Agreement relates.
15.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed or otherwise agreed to by each party, except as otherwise provided herein.
15.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever.
15.5 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
15.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Any notices to Twigex shall also include a copy to legal[at]twigex.com.
15.7 In addition to any rights that accrued prior to termination, the provisions of Sections 3.3, and 5 through 15 shall survive any termination of this Agreement.
15.8 This Agreement will be governed by the laws of the Republic of Latvia. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the Parties with respect to this Agreement and the transactions contemplated hereby.
Fees for the Subscriptions are based upon the number of Users and the applicable level of support and/or functionality of the Software, as set forth in the table below.
In the event Customer does not reasonably comply with written specifications or instructions from Twigex’s service engineers, regarding any support issue or request (including without limitation, failure to make backups of Customer Content or versions of Software) (each, a “Support Issue”), Twigex may cease its support obligations to Customer with respect to such Support Issue upon fifteen (15) days written notice and Customer’s inability to cure such noncompliance within the notice period.
With respect to Customer’s purchase and/or use of the SaaS Software, the following additional terms shall apply. AVAILABILITY
Availability to the SaaS Software will be measured, and reported on, by Twigex using instrumentation and observation tools specifically designed to provide a representative measure of service availability. Recent status, references to availability measurement definition, and historical reporting will be available at Twigex website.
Twigex will design and sustain a cloud infrastructure with commercially acceptable reliability for all data, computing, and network services.
Twigex will maintain a commercially reasonable system of data backup process and technology to ensure that primary data sources remain recoverable in the event of various system failures.
Twigex will use instrumentation and observation tools to detect and report system behavior that may limit use of the SaaS Software. Additionally, Twigex will employ industry-standard practices to ensure appropriate engineering personnel are available for incident response.
Twigex will update the SaaS Software as updates are available and when reasonably practical to implement said updates. Update timing and the process will remain at Twigex’s discretion.
Twigex will occasionally perform scheduled system maintenance which requires limits to the use of part or all of the SaaS Software features or significantly reduces features and functions during the scheduled system maintenance period. Twigex will provide ten (10) business days' notice for all scheduled system maintenance activities. Twigex will take a proactive approach to minimize the need for such maintenance and will limit scheduled system maintenance to less than four (4) hours per calendar month. Notwithstanding the foregoing, in the event of an emergency or urgent issue which may negatively impact Twigex’s customers, Twigex has the right to carry out unscheduled maintenance to remedy such instance(s). For the avoidance of doubt, such unscheduled maintenance shall: (i) be limited to only those issues which may negatively impact customers; and (ii) will be carried out in such a manner to provide for the least amount of disruption to customers.
Twigex reserves the right to suspend service to the SaaS Software if: (i) the Customer fails to comply with the Agreement and this Appendix; (ii) the Customer exceeds set application limits; or (iii) requests or usage deemed malicious in nature is identified to be sourced from the Customer's accounts, personnel, or systems.