A.“Confidential information” means any information disclosed by either party pursuant to this Agreement that is (i) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature, or (ii) in the case of oral or visual disclosure is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential, and provided to the receiving party within a reasonable time not to exceed thirty (30) days, or (iii) under the circumstances should in good faith be considered to be confidential. Confidential Information includes, without limitation, information related to: research, product plans, products, developments, inventions, processes, designs, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, pricing, performance of Twin Prime, performance of the Twin Prime System and stability of the Twin Prime System. Notwithstanding the foregoing, all technology or proprietary information underlying the Twin Prime Data and Twin Prime System shall be deemed Confidential Information of Twin Prime without any need for designation as confidential or proprietary.
B. “Network data” includes summary information about the network, performance of requests, and is information about device, carrier, network type, operating system, time of request, application name, battery and memory usage. For clarity, Network Data that can be related to an individual user, such as a digital fingerprint, is Customer Data. Network Data does not disclose any business confidential information about the Customer and its usage is approved by the Customer.
C. “Customer Data” means any information excluding Network Data, owned or provided by or on behalf of Customer or Processed by Twin Prime on Customer’s behalf through providing the Services. Customer Data includes Personal Information/Data, Sensitive Personal Information/Data, and Customer Confidential Information.
D. “Twin Prime Data” means all data generated by the Twin Prime System excluding all Customer Data.
E. “Developments” means the collective ideas, know-how, or techniques developed or conceived by Twin Prime as a result of providing the Twin Prime System to Customer, including without limitation any derivative works, improvements, enhancements and/or extensions made to the Twin Prime Content, Twin Prime Data, Website, or Twin Prime System, as well as all suggestions, comments, or other feedback related to the Twin Prime Data or Twin Prime System or any other Confidential Information of Twin Prime, and all worldwide intellectual property rights therein.
F. “Intellectual Property Rights” means all rights of the following types, under the laws of any jurisdiction worldwide: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (ii) trade secret rights; (iii) patent and industrial property rights; (iv) other proprietary rights of every kind and nature; and (v) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the above.
G. “Services” means the services the parties have mutually agreed during the onboarding process that Twin Prime will provide during the Term.“Twin Prime Content” means all content, including without limitation software (in object or source code form), script, programming code, data, information, structural hierarchies, processes, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text, contained in the Twin Prime System (except for the Customer Data).
H. “Twin Prime SDK” means the software development kit provided by Twin Prime.
I. “Twin Prime System” means the software applications operated on Twin Prime’s hosting servers or those of its hosting service provider intended to enable Customer to interact with the same via the internet. Without limiting the foregoing, the Twin Prime System includes Twin Prime Content, Twin Prime SDK, and the Website.
J. “Website” means the website located at www.twinprime.com, and all subdomains, subpages, and successor sites thereof, and the web-based interfaced hosted by Twin Prime thereon, by which Customer may access the Twin Prime System and its features and functionalities.
2. Twin Prime’s Responsibilities
A. Twin Prime will host and maintain the Twin Prime System on servers operated and maintained by or at the direction of Twin Prime. Twin Prime may in its sole discretion modify, enhance or otherwise change the Twin Prime System. Twin Prime may delegate the performance of certain portions of the Twin Prime System to third parties, including Twin Prime’s wholly owned subsidiaries.
B. Twin Prime will host and maintain the Website, and provide Customer access to the Website pursuant to a password protected user account. Twin Prime reserves the right to periodically change issued passwords. Twin Prime will provide prompt notice to Customer of any such password changes.
3. Customer’s Responsibilities
A. Customer will be responsible for obtaining and maintaining at its expense all the necessary computer hardware, software, modems, connections to the internet and other items required for Customer’s access and use of the Twin Prime System and Website.
B. During the Term, Customer shall use its commercially reasonable efforts to cooperate with Twin Prime in developing and sharing testimonials, case studies, marketing materials, return-on-investment calculations, and measurement criteria for the purpose of substantiating the value, benefits, and cost savings derived from the Twin Prime System.
4. License Grants; Restrictions
A. License to Customer. Subject to the terms and conditions of this Agreement, Twin Prime hereby grants Customer a limited, personal, non-transferable, nonexclusive license during the Term to: (i) access and use the Twin Prime System solely in the manner contemplated by this Agreement; (ii) install and operate the Twin Prime SDK, in object code form, solely in the manner contemplated by this Agreement; (iii) use the Twin Prime Data solely as permitted by the features and functionalities of the Twin Prime System; and (iv) access and use the Website as required to use the Twin Prime System. The foregoing rights are subject to Customer’s full compliance with each of the following, and will be exercisable by Customer solely: (x) for Customer’s internal business use; (y) in accordance with the features and functionalities offered by Twin Prime in connection with the Twin Prime System.
B. Customer Data Usage. Notwithstanding anything to the contrary in this Agreement, Twin Prime shall use Customer Data solely for the purposes of providing the Services to Customer.
C. License Restrictions. Except to the extent explicitly permitted in Section 4(A) or with the prior written consent of Twin Prime, Customer shall not, and shall not permit any third party to: (i) use the Twin Prime Content, Twin Prime Data, Website, or Twin Prime System; (ii) modify or create any derivative work of any part of the Twin Prime Content, Twin Prime Data, Website, or Twin Prime System; (iii) market, sublicense, publish, distribute, reproduce, resell, assign, transfer, rent, lease, or loan the Twin Prime Content, Twin Prime Data, Website, or Twin Prime System; or (iv) use the Twin Prime Content, Twin Prime Data, Website, or Twin Prime System for commercial time-sharing or service-bureau use.
D. Reservation of Rights. Twin Prime reserves all rights to the Twin Prime Data and Twin Prime System not otherwise expressly granted herein.
5. Payments and Taxes
A. Taxes. Customer shall pay any sales, use, and other taxes and similar charges based on or arising from the Twin Prime System, this Agreement or its performance (other than taxes based on Twin Prime’s net income).
B. Expenses. The Customer will reimburse Twin Prime for reasonable travel and living expenses incurred by Twin Prime in performing services at sites other than Twin Prime facilities at the Customer’s request (including without limitation, any services relating to setup, training, support, and consulting).
C. Payment Terms: All payments are due Net 30 days from the date of the invoice, unless otherwise stated.
6. Warranties and Disclaimers
A. General. Each party represents and warrants that: (i) such party is a corporation duly organized, validly existing, and in good standing under the laws of the state of its incorporation, and has the full power and authority to enter into and perform its obligations under this Agreement; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and (iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.
B. Disclaimers. Except as provided in this section 6 and to the maximum extent permitted by applicable law, the Twin Prime System and Twin Prime Data and all related information, technology, and services provided by or on behalf of Twin Prime are provided “as is,” “as available,” and without any representations or warranties of any kind, express or implied, and Twin Prime expressly disclaims any implied warranties of merchantability, fitness for a particular purpose (even if we are advised of the purpose), accuracy, and/or non-infringement. In addition, Twin Prime does not warrant that access to the Twin Prime System will be uninterrupted or error free, that the Twin Prime System or Twin Prime Data will meet Customer’s needs, or that data will not be lost. Without limiting the foregoing, Twin Prime does not warrant that the Twin Prime System or Twin Prime Data is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of the Twin Prime System is downloaded at Customer’s own risk and Customer will be solely responsible for any damage to its computer system or loss of data that results from such download or Customer’s use of the Twin Prime System or Twin Prime Data.
7. Term, Termination, and Survival
A. Term. This Agreement shall commence on the date you have completed the signup process on the Website, and shall continue for the period agreed mutually agreed upon between the parties (the “Trial Period” or the “Term”).
B. Termination. Either party may terminate this Agreement: (i) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice; or (ii) immediately on written notice if: (a) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (b) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within thirty (30) days; or (c) the other party is adjudged bankrupt or insolvent.
C. Survival. Upon termination or expiration of this Agreement, all licenses granted hereunder shall immediately terminate. The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 4(B), 4(C), 4(D), and 5 through 17 (inclusive).
8. Limitation of Liability. the aggregate liability of Twin Prime and its licensors to Customer arising from its access to or use of the Twin Prime System or Twin Prime Data, or Twin Prime’s provision of technical support, installation, training or other services in connection therewith, or otherwise in connection with this Agreement or its subject matter, however caused, and on any theory of liability, including without limitation contract, strict liability, negligence and/or other tort, shall in no event exceed the amount of fees that have been paid to Twin Prime for access to and use of the Twin Prime System or Twin Prime Data during the six (6) months immediately preceding the first event giving rise to such liability. in no event will Twin Prime or its licensors be liable for any indirect, incidental, special, or consequential damages, including without limitation damages for loss of profits, revenue, data, or data use, even if advised of the possibility of such damages, including, without limitation, any liability related to the procurement of substitute goods. The foregoing limitations form an essential basis for this Agreement and shall survive regardless of the failure of any remedy of its essential purpose.
A. Twin Prime’s Ownership Rights. Subject only to the limited license expressly granted under this Agreement, as between Twin Prime and Customer, Twin Prime shall retain all right, title, and interest in and to the Twin Prime Data, Twin Prime System (excluding the Customer Data), and Developments, and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Customer any right of ownership or interest in the Twin Prime Data, Twin Prime System (excluding the Customer Data), and Developments, and all Intellectual Property Rights therein. To the extent Customer have or obtain any right, title, or interest in the Twin Prime Data, Twin Prime System (excluding the Customer Data), and Developments, and all Intellectual Property Rights therein, Customer hereby assign, and agrees to assign, without further consideration, to Twin Prime all such right, title, and interest Customer may obtain.
B. Execution of Documents. During the Term, and at any other time thereafter, at Twin Prime’s request Customer shall execute any and all documents and perform any and all acts that Twin Prime may reasonably require in order to protect and perfect any Twin Prime Intellectual Property Rights, or to apply for, obtain, and vest in the name of Twin Prime alone all patents, copyrights, trademarks, or other similar protection for any Twin Prime Intellectual Property Rights, and, when so obtained or vested, to maintain, renew, and restore the same.
10. Indemnity. Customer will indemnify, defend, and hold Twin Prime and its affiliates, and its and their officers, members, directors, employees, agents, successors and assigns harmless from and against all liabilities (including liabilities arising out of the application of the doctrine of strict liability), obligations, losses, damages, penalties, fines, claims, penalties, actions, suits, judgments, costs, expenses, and disbursements (including reasonable legal fees and expenses and reasonable costs of investigation) (“Losses”) caused by or otherwise arising from: (i) a third-party claim that the Customer Data (or any portion thereof) infringes or otherwise violates such third-party’s intellectual property or other proprietary rights; (ii) Customer’s use of and access to the Twin Prime System or Twin Prime Data; (iii) Customer’s violation of any term of this Agreement, including without limitation Customer’s breach of any of the representations and warranties above; (iv) Customer’s violation of any applicable law, rule, or regulation; (v) Customer’s willful misconduct, recklessness, or gross negligence; or (vi) any third-party’s access and use of the Twin Prime System or Twin Prime Data with your unique username, password, or other appropriate security code.
11. Confidentiality. Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in this Agreement, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that Twin Prime may retain copies of the Customer Confidential Information for routine backup and archival purposes and for the avoidance of doubt, nothing herein will require Twin Prime to destroy or cease use of any Twin Prime Data. Notwithstanding the foregoing, the obligations set forth in this Section 11 shall not apply with respect to any information to the extent that it is: (i) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (ii) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (iii) is approved in writing by the disclosing party; or (iv) is required to be disclosed by applicable legal authority provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure.
14. Governing Law, Jurisdiction, Venue, and Dispute Resolution. This Agreement shall be construed in accordance with applicable U.S. federal law and the laws of the State of California without regard to conflict of laws principles. In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through friendly consultation. If the dispute is not resolved within a reasonable period, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be finally settled by arbitration in San Mateo County, California. Notwithstanding the foregoing, each party shall have the right to institute an action in the state or federal courts of San Mateo County, California for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that injunctive relief and damages shall only be awarded by the arbitrator(s).
15. Force Majeure. Other than for payment of money, a party shall be excused from any delay or failure in performance hereunder due to any labor dispute, government requirement, internet congestion or breakdown, or any other cause beyond its reasonable control. Such party shall use commercially reasonable efforts to cure any such failure or delay in performance arising from such a condition, and shall timely advise the other party of such efforts. If such delay continues for more than sixty (60) days, the performing party may, upon not less than ten (10) days prior written notice to the non-performing party, terminate this Agreement.
16. Relationship of the Parties. The relationship between the parties shall only be that of independent contractors. Neither party is an agent, representative, partner, employer, or employee of the other party, and neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
17. Publicity. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship without obtaining the express prior written consent of the other party; except that Twin Prime may use Customer’s logos, trademarks, and trade names solely to list Customer in marketing materials as a customer of Twin Prime without the need for obtaining such prior written consent.