THIS MASTER SERVICES AGREEMENT ("AGREEMENT") GOVERNS YOUR USE OF CERTAIN SERVICES (AS DEFINED BELOW) THAT ARE ORDERED FOR A FEETHROUGH AN ORDER FORM AND PROVIDED BY THE GATHERING COLLECTIVE, INC. (“TWINE”). BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AND TWINE AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, CUSTOMER SHALL NOT USE THE SERVICES.
- “Access Credentials” means login information, passwords, security protocols, and policies through which Users access and manage the Twine Services.
- “Attendee” means a unique person who creates an account when joining a Twine event.
- “Customer” means the customer identified in an Order Form.
- “Customer Data” means the data and content uploaded or submitted into the Twine Services by or on behalf of Customer.
- “Confidential Information” means all written or oral information, disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), related to the business, products, services or operations of the Disclosing Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents; and (iii) information regarding the skills and compensation of the Disclosing Party’s employees, contractors, and other agents.
- “Documentation” means the documentation, user manuals, help files and videos, and other materials that describe the features, functions and operation of the Twine Services.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Order Form” means the document signed by an authorized representative of each party that references this Agreement and identifies the specific Service(s) to be made available and the fees to be paid.
- “Professional Services” means any professional services provided by Twine to Customer as described in an Order Form, including implementation, support and maintenance, and training services.
- “Services” means the Twine Services, the Professional Services and any other services set forth in an Order Form.
- “Twine Services” means any Twine software-as-a-service application identified in the Order Form that allows Users and Attendees to access certain features and functions through a web interface. References to any Twine Services include the Documentation.
- “User” means each of Customer’s employees and independent contractors who are provided Access Credentials by Customer or Twine.
2. Access, Rights, Restrictions and Security
- Access Credentials. Customer will use commercially reasonable efforts to safeguard, and ensure that all Users safeguard, their Access Credentials and prevent unauthorized access to, or use of, the Twine Services. Customer will notify Twine promptly of any such unauthorized use known to Customer or any other known or suspected breach of security.
- Support Services. Subject to the terms and conditions of this Agreement, Twine will exercise commercially reasonable efforts to (a) provide support for the use of the Twine Services by Customer, and (b) keep the Twine Services operational and available to Customer, in each case in accordance with its standard policies and procedures.
- Customer Restrictions. Customer shall not, and shall not permit any User or other party to: (a) allow any third party to access the Twine Services, except as expressly allowed herein; (b) modify, adapt, alter or translate the Twine Services; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Twine Services for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Twine Services, except as permitted by law; (e) interfere in any manner with the operation of the Twine Services or the hardware and network used to operate the Twine Services; (f) modify, copy or make derivative works based on any part of the Twine Services; (g) access or use the Twine Services to build a similar or competitive product or service; (h) attempt to access the Twine Services through any unapproved interface; or (i) otherwise use the Twine Services in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Twine Services will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
- Customer Obligations. Customer will be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer or any User to access the Services from the Internet. Twine will not be liable for any deficiency in performing Services if such deficiency results from Customer’s failure to provide the foregoing.
- Ownership. The Twine Services, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Twine and its suppliers. All rights in and to the Twine Services not expressly granted to Customer in this Agreement are reserved by Twine and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Twine Services or any part thereof.
- Feedback. Customer hereby grants to Twine a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Services (“Feedback”). Twine will not identify Customer as the source of any such Feedback. Customer understands and agrees any Feedback shall not be considered Confidential Information and that Twine shall be free to use such Feedback for any lawful purpose without any further monetary payment.
- Invoicing. Except as otherwise set forth in any Order Form, all fees related to Customer’s subscription access to the Twine Services will be invoiced by Twine in advance on an annual basis (“Subscription Fees”). Unless otherwise set forth in any Order Form, all other fees set forth in an Order Form (e.g., fees for Attendee overages and/or Professional Services) will be invoiced monthly in arrears. The Subscription Fees and all other fees set forth in the Order Form will be referred to herein as “Fees”.
- Fees. Unless otherwise specified in any Order Form, all invoices issued by Twine will be due and payable thirty (30) days after receipt by Customer. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. The Fees exclude, and Customer will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on Twine’s income).
- Expenses. Customer will reimburse Twine for any travel and out-of-pocket expenses incurred by Twine in connection with the provision of Services; provided that Customer has approved such expenses in writing or via email.
4. Warranties; Disclaimers
- General Representations. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement constitutes a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
- Performance Warranty. Twine represents and warrants that the Services will be provided in accordance with each Order Form and the Documentation.
- Compliance with Laws. Twine will provide, and Customer shall use the Services in accordance with all applicable laws, rules and regulations.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. TWINE DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
5. Limitations of Liability
- Types of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Amount of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO TWINE DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 5 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidentiality. During the Term, Disclosing Party may provide Receiving Party with Confidential Information. The Receiving Party agrees that: (a) it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement; (b) it will limit access to the Disclosing Party’s Confidential Information to those employees, contractors, and agents who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have agreed in writing to be bound by confidentiality obligations and use restrictions at least as stringent as those obligations placed on the Receiving Party under this Agreement; (c) it will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care; (d) upon the Disclosing Party’s request or upon termination of this Agreement, it will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) any Confidential Information in its possession or control. Each party shall be responsible for its employees, contractors and agent’s compliance with the terms of this Agreement.
- Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information that the Receiving Party can establish: (i) was known to the Receiving Party prior to receiving such information from the Disclosing Party, free of any restrictions; (ii) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; (iii) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Receiving Party. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- Twine Indemnity. Twine will indemnify, defend and hold Customer, its directors, officers, and employees harmless from and against any and all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, (collectively “Losses”) arising out of any third party claim to the extent alleging that the Twine Services infringe any U.S. patent, copyright, trademark or trade secret.
- Exclusions. Section 7.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any User in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Twine if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Data (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
- Customer Indemnity. Customer will indemnify, defend and hold harmless Twine, its directors, officers, and employees from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 4, or (b) arising out of any Customer Indemnity Responsibility.
- Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
- Infringement. If the Twine Services are, or in Twine’s opinion, are likely to become, the subject of any infringement-related claim, then Twine may, at its expense and in its discretion: (a) procure for Customer the right to continue using the Twine Services; (b) replace or modify the infringing technology or material so that the Twine Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order Form pursuant to which the Twine Services are provided and give Customer a refund for any pre-paid but unused Fees.
- THE PROVISIONS OF THIS SECTION 7 STATE TWINE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
8. Term and Termination
- Term of Agreement. This Agreement becomes effective when the parties enter into an Order Form and will remain in effect so long as such Order Form remains in effect, unless otherwise terminated as provided herein.
- Term of Order. The term for each Order Form shall commence on the effective date of the applicable Sales Order (or, if no effective date is specified, on the date the Order Form has been executed by both Customer and Twine) and shall be in effect for the term specified in the Order Form provided, that if no such term is indicated in the Order Form, the initial term shall be for one year (the “Initial Term”). The term of each Order Form will automatically renew for successive periods equal to the length of the Initial Term (each, a “Renewal Term”) unless a party provides the other party written notice of non-renewal at least 60 days prior to the expiration of the then existing term.
- Termination. Either party may terminate this Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other if the other party breaches any material provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
- Suspension of Service(s). At any time during the Term, Twine may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any amount due under this Agreement is not received by Twine within fifteen (15) days after it was due, or (c) breach or violation by Customer of any laws, rules, or regulations.
- Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Twine prior to such termination or expiration and all completed but unpaid Professional Services fees will be immediately due and payable and (b) all licensed and access rights granted will immediately cease to exist. Sections 1, 2.4, 2.6, 2.7, 3, 5, 6, 7, 8.5 and 9 will survive any expiration or termination of this Agreement.
- Assignment. Neither party will assign this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Publicity. During the Term and thereafter, Twine may refer to Customer as a Twine customer, orally and in writing (including in promotion or marketing materials and on Twine’s website and social media postings).
- Notices. All notices, consents, and approvals under this Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Order Form and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.
- Governing Law; Disputes. This Agreement will be governed by the laws of the State of California, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in San Mateo County, California and both parties submit to the jurisdiction and venue of such courts.
- Remedies. Customer acknowledges that any actual or threatened breach of Section 2 or 6 will constitute immediate, irreparable harm to Twine for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.
- Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User or any employee, contractor or agent) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
- Force Majeure. Except for the obligation to pay Fees, any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a natural disaster, war, act of terror, or any other event beyond the reasonable control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.