These general terms and conditions (the “General Terms”) shall govern all Order Forms entered into by Twikit NV a Belgian limited liability company (naamloze vennootschap) having its registered seat at Uitbreidingstraat 60-62, 2600 Antwerpen (Belgium), registered with the Crossroad Bank for Enterprises under number 0500.986.687 (hereinafter “Twikit”) and the legal entity or natural person identified as customer in the Order Form (the “Customer”), except when superseded and replaced by any deviating contractual agreements expressly made in writing between Twikit and the Customer.
Twikit and the Customer are hereinafter jointly referred to as the “Parties” and individually as a “Party”.
Customer’s general terms and conditions are not applicable and expressly excluded.
Specific services terms, product details and/or subscription terms will be set forth in applicable Order Form(s) and/or Statement of Work (“SOW”), each of which becomes binding on the Parties and subject to these General Terms and documents referenced therein upon execution of an Order Form and/or a SOW.
Each Order Form and/or SOW is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement” that consists of:
- the Order Form;
- the SOW;
- the Data Processing Agreement;
- these General Terms.
In the event of a conflict, the order of precedence is as set out above in descending order.
Twikit reserves the right to unilaterally and at any time modify these General Terms provided it gives prior written notice of such changes to Customer (including without limitation by e-mail) (the “Notice”). In that case, Customer may terminate this Agreement within fifteen (15) days of such notice by notifying Twikit of such termination in writing. If Customer does not notify Twikit of such termination, the new terms shall become effective as of the date specified in the Notice.
Except as otherwise provided, the defined terms used in this Agreement shall have the meaning as set forth in Article 1.
This Agreement governs:
(i) Customer’s subscription to the SaaS Solution set forth in the Order Form made available to Customer in accordance with the terms of this Agreement; and/or
(ii) Customer’s subscription to additional Services as set forth in the Order Form and/or a SOW.
1. Definitions and interpretations
Terms in this Agreement and in the Schedules hereto other than names of Parties and Section headings which begin in capital letter will have the meanings defined in this Section unless defined in the text of this Agreement:
“3D Product” means any product in three dimensions fabricated via 3D printing, CNC or other digital manufacturing technologies.
“Access Right” means the access and usage right granted to Customer hereunder for the access and use of the SaaS Solution.
“Affiliate” has the meaning given thereto in article 1:20 of the Belgian Code of Companies and Associations.
“Business” means the business in which Customer is active, as described in the Order Form.
“Business Day” means any day except Saturday, Sunday or a public holiday in Belgium.
“Change Request” means a written request issued in a form to be agreed between the Parties to change the relevant SOW.
“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential given its nature or the circumstances under which it was disclosed, regardless of whether or not it is expressly marked as confidential, including information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, Affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, Customer lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. The Confidential Information of Twikit shall include the Software.
“Custom Configuration” means a custom configuration of the SaaS Solution for the Customer Application, as specified in the relevant SOW, and any and all Intellectual Property Rights pertaining thereto.
“Customer’s Application” means Customer’s [website / webshop / mobile app / …]
“Customization” means any customization of a customizable (3D) product performed by Twikit based on a Design Template and developed by Twikit, and designated as being a “Customization” in the relevant SOW, and any and all Intellectual Property Rights pertaining thereto.
“Customer Owned Customization” means any deliverable, authored, developed, conceived or created for the Customer by Twikit and designated as being a Customer Owned Customization in the relevant SOW.
“Design Template” means designs and other materials and information related to 3D Products developed and/or delivered by Twikit and not designated explicitly as Customization in the relevant SOW and any and all Intellectual Property Rights pertaining thereto.
“Effective Date” means the earlier of: (i) the start date of an Order Form, as indicated therein and (ii) the date of activation of the Twikit Platform and/or Twikit Configurator;
“Fees” means the Transaction Fees, Minimum monthly invoicing and Set Up Fees as set forth in the relevant Order Form and/or SOW.
“Intellectual Property Rights” means patents, trademarks, service marks, registered designs, trade secrets, copyrights, design rights, right in know how, confidential information, trade and business names, domain names, database rights, rental rights and any other intellectual or industrial property or similar right throughout the world, including applications for and the right to apply for any of the preceding items.
“Minimum monthly invoicing” means the fee payable by Customer for the access to and use of the SaaS Solution as defined in the Order Form.
“Order Form” means any order form executed by Customer and Twikit with respect to Customer’s subscription to the SaaS Solution and/or Services;
“Professional Services” means services provided by Twikit to Customer in connection with the SaaS Solution, which may include services in relation to the provision of Custom Configuration, installation, implementation, configuration, integration, consulting, development, any customization services (whether the provision of Customizations or of Customer Owned Customizations) or any other services that are described in a Statement of Work mutually agreed upon by the Parties.
“SaaS Solution” means the Software and any and all modifications thereof.
“Section” and “Sub-Section” means a reference to a numbered paragraph or sub-paragraph of these General Terms.
“Services” means the services to be provided by Twikit with respect to the SaaS Solution, which may include Professional Services or Support Services.
“Set Up Fees” means the fees payable in respect of the Services as set forth in the Order Form and/or the relevant SOW.
“Software” means a Twikit Platform and Twikit Configurator from the Twikit Portfolio, as further specified in the Order Form and (as the case may be) and as set forth in the relevant SOW and which is offered as a SaaS Solution to the Customer.
“Source Code” means computer software written in programming languages including all comments and procedural code in a form intelligible to trained programmers, and capable of being translated into the object code form of software for operation on computer equipment through assembly or compiling.
“Specifications” means specifications provided in a relevant SOW and in accordance with which the Custom Configurations will be made.
“Statement of Work” (or “SOW”)” means any statement of work executed between the Parties pursuant to these General Terms, the case being provided in the Order Form, in respect of the provision of Services (other than Support Services) by Twikit and that forms an integral part of the Agreement.
“Support Fee” means the fees for Support Services as set forth in the Order Form.
“Support Services” means the technical maintenance and support services and training provided by Twikit for the Software as more specifically set forth in the Service Level Agreement (SLA) attached as Schedule 1 to these General Terms.
“Twikit Configurator” means the configurator from the Twikit Portfolio as set forth in the Order Form which access and use is granted to the Customer in order to be integrated in Customer’s Application.
“Twikit Platform” means the platform from the Twikit Portfolio as set forth in the Order Form to which the Customer has been granted access and usage rights under the Agreement.
“Twikit Portfolio” means the portfolio of Twikit consisting of different [cloud-based] software products allowing end-to-end 3D Product customization.
“Twikit Pre-Existing IPR” means the proprietary tools, methodologies and materials, know-how, development tools, processes, technologies, algorithms, data, modules, components, designs, utilities, subsets, objects, program listings, models, programs, systems, analysis, frameworks, leading practices, and specifications developed or used by Twikit prior to the Effective Date or developed independently from this Agreement, including enhancements and improvements to the aforementioned tools and materials which Twikit develops in the course of performing the Services.
2. SaaS Solution Access and Usage Right
- Twikit Platform. Subject to the terms and conditions set out herein and the timely payments of the minimum monthly invoicing by the Customer, Twikit hereby grants to Customer, a personal, limited, non-transferable, non-assignable and non-exclusive right to access and use the Twikit Platform, in connection with the Business and solely in connection with Customer’s Application. The rights provided under this Section are granted to Customer only, and shall not be considered granted to any affiliate of Customer.
- Twikit Configurator. Subject to the terms and conditions set out herein and the timely payments of the minimum monthly invoicing by the Customer Twikit hereby grants to Customer, a personal, limited, non-transferable, non-assignable and non-exclusive right to access and use the Twikit Configurator, in connection with the Business for integration on Customer’s Application. The rights provided under this Section are granted to Customer only, and shall not be considered granted to any Affiliate of Customer.
- Customer agrees that it will not
- change the Customer’s Application unless agreed in writing by Twikit.
- sell, lease, assign, transfer, or sub-license (access to) the Software other than as permitted under the Order Form, nor provide access to or make the Software whether gratuitously or for consideration available to any third party except that Customer may disclose the Software to employees for use solely in connection with the normal operation of the Software by Customer with respect to the Business.
- interfere with, alter or modify the Software unless expressly agreed by Twikit in writing.
- Customer ensures and warrants to Twikit that it shall comply with the restriction on use of the SaaS Solution.
- Customer hereby acknowledges and agrees that any modification or attempted modification of the Software by any party other than Twikit or use of the Software outside the scope of the rights granted under this Agreement, will void Twikit’s warranties with respect to the Software and will be deemed to represent a material breach of this Agreement.
- Introduction – SOW. All Services (including but not limited to any design services) with respect to the SaaS Solution shall be provided by Twikit pursuant to a SOW and signed by a duly authorized representative of both Parties. Each SOW shall incorporate by reference the terms of these General Terms.
- Specifications and Changes to Specifications. The Specifications are set forth in the relevant SOW. Twikit shall make the Custom Configurations based upon the Specifications set forth in the SOW within the term and timeframe set forth in the SOW. Requests for changes to the Specifications after execution of the SOW shall not be effective without the written consent of the Parties. All requests for changes shall be made in accordance with Section 5.
4. Change Control Procedure
- Either Party may issue a Change Request regarding Professional Services.
- The receiving Party shall respond within ten (10) Business Days of receipt to the Change Request. If Twikit initiates the Change Request, Twikit shall specify in the Change Request the estimated cost and impact on the time scales or other terms and conditions of the Agreement or SOW that may be impacted. If Customer initiates the Change Request, Customer shall provide all relevant information to allow Twikit to respond to the Change Request with estimated costs, impact on timescales and any other relevant terms and conditions of the Agreement or SOW that may be impacted.
- The Parties shall cooperate and negotiate in good faith to reach agreement on the specifics of the requested change, including the scope and nature of the requested change, the impact on the SOW the related fees and the time period in which such change will be implemented.
- Neither Party shall be bound by a requested change request until approved in writing by both Parties.
5. Service Levels
- Maintenance and support shall apply to all Software made available pursuant to this Agreement. Twikit shall provide Support Services in accordance with the terms and conditions set forth in the Service Level Agreement (SLA) attached as Schedule 1.
- Fees – In consideration for the access to and use of the SaaS Solution Customer shall pay to Twikit the minimum monthly invoicing, transaction fees as set forth in the Order Form and Set Up Fees as set forth in the relevant SOW and/or Order Form in accordance with the installments, payment terms and any further provisions set forth in the Order Form or the relevant SOW.
- All payments made by Customer to Twikit hereunder shall be made free and clear of and without deduction for or in respect of any taxes, levies, imposts, duties, charges, fees, deductions or withholdings of any nature imposed, levied, collected, withheld or assessed.
- Each payment to be made by Customer to Twikit under this Agreement shall be paid by Customer within thirty (30) days of receipt from Twikit of a correctly raised invoice.
- If any sums payable to Twikit under this Agreement are in arrears for more than thirty (30) days after the due date, Twikit reserves the right to charge interest on a day-to-day basis at a rate of 1.5% per month.
- Notwithstanding any other remedy it may have Twikit shall have the right to suspend the access to and use of the SaaS Solution and the provision of any Services, in respect of which payment is overdue.
- In the event Customer disputes any portion of an invoice, Customer shall notify Twikit of such disputed amount and the basis for Customer’s dispute, together with any appropriate information supporting Customer’s position, within fourteen (14) days from the invoice date (failure of which shall result in the invoice being deemed accepted), and the undisputed portion shall be paid as provided herein.
7. Customer Responsibilities
- Twikit and Customer shall each designate one person to act as primary point of contact between Twikit and Customer with respect to progress of the execution of this Agreement.
- It is Customer’s responsibility to raise any issues relating to any third party product identified by the SaaS Solution with the provider of such third party product.
8. Intellectual property rights
- SaaS Solution – All rights, including Intellectual Property Rights in the SaaS Solution shall at all times remain the sole and exclusive property of Twikit, and Customer shall obtain no rights, title or interest in the SaaS Solution except for the restricted user rights expressly granted hereunder. Customer hereby acknowledges that Twikit retains all rights, including any Intellectual Property Rights in and to any modifications to the SaaS Solution, update, upgrade or new release thereof, and that all Intellectual Property Rights in the Software shall be and remain the sole property of Twikit. Subject to the terms and conditions of this Agreement Twikit will grant Customer a personal, restricted, non-exclusive, non-transferable, non-assignable right, without the right to sublicense, to access and use the SaaS Solution in its Business operations.
- Services and deliverables – All rights, including any Intellectual Property Rights, in and to the Services and deliverables provided as part of the Services (including Customizations and Design Templates), as well as any derivative works of the deliverables, (including any and all related ideas, concepts, know-how, techniques, inventions, discoveries, improvements, specifications, designs, methods, devices, systems, reports, studies, computer software, programming and other documentation, flow charts, diagrams and all other information or tangible material of any nature whatsoever that are) designed, prepared, produced or developed by Twikit in the performance of the Services are and shall at all times remain the sole and exclusive property of Twikit, and Customer shall obtain no rights except for the rights expressly granted pursuant to this Agreement and the relevant SOW, unless (i) as set forth in Sections 3 and 9.4below or (ii) in the relevant SOW. In the event that, notwithstanding the prohibition herein, Customer or any employee or agent of Customer modifies, improves or creates derivative works of the Services, Twikit shall own all right, title and interest in and to such derivative works of the Services and Customer hereby agrees to assign and hereby assigns – at no cost to Twikit any rights in such derivative works to Twikit and agrees to secure any additional confirmations, assignments or other instruments as may be necessary to vest title to any such derivative works of the Services in Twikit as contemplated by this Section. Subject to the terms and conditions of this Agreement Twikit will grant Customer a personal, restricted, non-exclusive, non-transferable, non-assignable right, without the right to sublicense, to access and use the Customizations in its Business operations. To the extent any Customizations contain any Twikit Pre-Existing IPR, Customer shall be granted a personal, restricted, non-exclusive, non-transferable, non-assignable right, without the right to sublicense, to use such Twikit Pre-Existing IPR to the extent necessary to be able to use the Customizations and provided such Twikit Pre-Existing IPR at all times remains embedded in the Customizations.
- Customer Owned Customizations. Notwithstanding anything to the contrary in the relevant SOW, any Customer Owned Customization will be the exclusive property of Customer, and considered as “work made for hire”, and all right, title, and interest to such Customer Owned Customization automatically vest in the Customer. The Customer grants, and Twikit hereby accepts, a personal, restricted, transferable, assignable, worldwide, paid-up, royalty-free license to make changes to and reproductions of any Customer Owned Customization (“Modified Customer Owned Customizations”) and to distribute and/or sell the Modified Customer Owned Customizations. The Intellectual Property Rights regime governing modifications made, developed or created by Twikit pursuant to such Modified Customer Owned Customizations is set out in Section 9.2. To the extent any Customer Owned Customizations or Modified Customer Owned Customizations contains any Twikit Pre-Existing IPR, Customer shall be granted a personal, restricted, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use such Twikit Pre-Existing IPR to the extent necessary to be able to use and commercialize the Customer Owned Customizations or Modified Customer Owned Customizations and provided such Twikit Pre-Existing IPR at all times remains embedded in the Customer Owned Customizations or Modified Customer Owned Customizations.
- Custom Configuration. Notwithstanding anything to the contrary in the relevant SOW, any Custom Configuration will be the exclusive property of Customer, and considered as “work made for hire”, and all right, title, and interest to such Customer Owned Customization automatically vest in the Customer. For the avoidance of doubt, this transfer of rights shall be limited to the configuration only and shall not pertain to the underlying Twikit Platform or Twikit Configurator, which shall at all times remain the exclusive property of Twikit.
- Notwithstanding anything to the contrary in this Agreement, Twikit shall be entitled to use the ideas, concepts, methodologies, processes and know-how developed or created by Twikit in the course of performing the Services. Nothing in this Agreement shall preclude Twikit from acquiring, marketing, developing, providing or using for itself or others, services, software or other products that have the same or similar functions to those provided to Customer under this Agreement, except to the extent such use would result in a breach of the confidentiality provisions of this Agreement.
- Customer agrees to promptly notify Twikit if Customer becomes aware that any third party is violating or infringing Twikit’s rights of whatever nature in any of the SaaS Solution and/or Services. Twikit shall have the right, but not the obligation, to prosecute such violator or infringer at its expense and to retain the full amount of any sums recovered as damages. Customer agrees to provide, at Twikit’s expense, reasonable cooperation to Twikit in the event of the commencement of any such prosecution action by Twikit.
- Twikit warrants that during the Term of this Agreement the operation of the Software shall comply with the specifications set forth in the Order Form and/or the SOW (ii) shall use all reasonable measures to ensure that the Software does not contain destructive foreign elements like viruses and (iii) Twikit shall provide Support Services in accordance with the terms and conditions set forth in the Service Level Agreement attached as Schedule 1.
- Twikit does not warrant that the operation of the Software shall be error-free or uninterrupted.
- The foregoing warranties shall not apply where faults are found to be caused by changes, alterations, additions, deletions, fixes, patches, redesigns or modifications of the SaaS Solution, Design Templates, Customizations made by Customer or any third party except Twikit, its employees and agents through Customer or with the consent of Twikit. Twikit shall be entitled to charge at Twikit’s standard rates for any time effort or expense incurred in investigating or correcting any failures in the Software which were caused directly or indirectly by any software or service supplied by Customer or any third party and used in conjunction with the Software other than that necessary for the Software to interface with or run alongside in order to fulfill the functions of the Software or caused by changes made to the Software other than by Twikit or with Twikit’s written consent.
- Twikit warrants that the Support Services and Professional Services will be performed in a workmanlike and professional manner.
- Customer warrants that it has the rights to supply the Specifications and other agreed necessary information and equipment (including but not limited to suggestions for Design Templates and Customizations and suggestions for Specifications) to Twikit pursuant to this Agreement (“Customer Information”), and that in so supplying to Twikit, no other party’s Intellectual Property Rights in such information and equipment are being violated. The Customer will (1) defend, or at its option settle, any suit filed by a third party against Twikit (“Suit”) to the extent such Suit claims that any Customer Information constitutes Twikit’s infringement or misappropriation by Twikit of a third party’s Intellectual Property Rights and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agree to by the Customer in a monetary settlement of such Suit.
- Except for the foregoing, Twikit makes no representations or warranties concerning any matter under this Agreement, including any Services, and the warranty set forth in this Section is made expressly in lieu of all other representations and warranties, express or implied, including any implied warranties of fitness for a particular purpose, merchantability, non-infringement or otherwise.
- Each of the Parties agrees that it will, both during the term of this Agreement and following termination or expiration of this Agreement (i) not disclose any Confidential Information of the other Party, except to those of its employees, officers, directors, contractors and Affiliates that have a demonstrable legitimate need-to know such information in light of the Parties’ rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to being granted access to such Confidential Information and subject to any other relevant conditions and restrictions set out in this Agreement, or (ii) use any Confidential Information of the other Party only for the purpose of the performance of this Agreement, excluding any use for its own benefit or that of any third party, except as expressly permitted under this Agreement.
- Each of the Parties shall ensure that each person who receives Confidential Information pursuant to this Agreement is made aware of and complies with the confidentiality obligations under this Agreement as if they were a party to this Agreement. Each of the Parties shall be responsible and liable towards the other Party for a breach of these confidentiality obligations by any party acting under their control or on their behalf.
- Customer acknowledges and agrees that Confidential Information of Twikit shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components, or combinations thereof are now, or become, known to the public, through whatever means, including through means of the supply or commercialization of products or services based on or related to such Confidential Information.
11. Term and Termination
- This Agreement will commence as of the Effective Date of the relevant Order Form and, unless otherwise provided in the relevant Order Form and/or SOW or terminated pursuant to Section 11.2 or 11.3 below, will remain in effect for a period of three (3) years (the “Initial Term”) and will automatically renew for successive one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either Party provides notice of termination to the other Party not less than Twelve months (12) prior to the end of the Initial Term or the then-current Renewal Term. The term of this Agreement shall continue as long as an Order Form and or SOW referencing this Agreement remains valid and in effect. Termination or expiration of any Order Form and/or SOW shall leave other Order Forms unaffected.
- Without prejudice to any other rights or remedies which either Party may have against the other for the breach or non-performance of any of the terms of this Agreement, this Agreement or a SOW may be terminated by either Party forthwith on notice in writing to the other Party: (i) if the other Party commits a material breach of this Agreement which either cannot be remedied or is not remedied within thirty (30) days after written notice requiring that it be remedied; or (ii) if a Party enters into liquidation, receivership, bankruptcy or other insolvency procedure, whether compulsorily or voluntarily, or the other Party is unable to pay its debts within the meaning of the applicable laws of the jurisdiction, other than for the purposes of reconstruction or amalgamation. Twikit may terminate this Agreement or any SOW forthwith on notice in writing if any payment due hereunder by Customer remains due and unpaid for sixty (60) days or more after becoming due.
- Upon termination of this Agreement for any reason, Customer shall (i) suspend all access to and use of the SaaS Solution (iii) all Confidential Information on any media received or received from any third party by Twikit which is in Customer’s possession or under its control and shall confirm in writing to Twikit that it has complied in all respects with this Section 11.3.
12. Limitation of Liability
- Subject to 12.2, Twikit’s total liability (whether in contract, tort, including negligence, or otherwise) arising out of any act, omission, event or circumstance or series of acts, omissions, events or circumstances relating to this Agreement or with respect to the matters contemplated herein shall in no circumstances exceed:
- with respect to the SaaS Solution (including Support Services), the total Fees paid by Customer during the 12 month period preceding the date on which the applicable liability claim arose.
- with respect to the Services provided under a SOW 100% of the Service Fees paid by Customer pursuant to a SOW during the 12 month period preceding the date on which the applicable claim arose.
- Notwithstanding anything to the contrary set out in the Agreement, in no event shall either Party be liable for any indirect, consequential, punitive, or special damages arising out of this Agreement, including loss of revenue or profits, loss of business, contracts, goodwill or anticipated savings, damages due to business interruption, loss or corruption of data or reputational damage.
- Nothing in this Agreement shall operate to exclude or restrict a Party’s liability for: (i) death or personal injury resulting from its negligence; (ii) fraudulent misrepresentation; or (iii) any other liability to the extent prevented from being excluded by applicable law.
- Twikit shall at Twikit’s expense indemnify Customer for its reasonable costs and all damages awarded under any final judgment by a court of competent jurisdiction or agreed by Twikit in final settlement for infringement of third party Intellectual Property Rights in respect of authorized use of the Software by Customer, to the extent that and conditional upon: (i) Customer makes no admission or statement prejudicial to Twikit; (ii) such infringement is not caused by or contributed to by acts of Customer other than the use of the Software in accordance with this Agreement; (iii) Twikit is promptly notified in writing of the details of the claim; (iv) Customer gives Twikit all reasonable assistance in connection therewith.
- In no event shall Twikit be liable to Customer for any claim of infringement based on: (i) a modification of the Software by Customer or a third party (ii) Customer’s unauthorized use of the Software: (iii) Customer’s failure to use the most recent version of the Software made available to Customer (iv) Customer’s use of the Software in combination with any other software, hardware, products or services not provided by Twikit (v) the creation or use of Customer Made Scripts and (vi) Customizations, (Modified) Customer Owned Customizations and other 3D Products created with the SaaS Solution. Customer shall at Customer’s expense indemnify Twikit for all costs and all damages and expenses incurred by Twikit and arising from an infringement or alleged infringement of a third party’s Intellectual Property Rights caused by unauthorized use of the Software by Customer or arising from Customer’s creation or use of Customer Made Scripts, Customizations, (Modified) Customer Owned Customizations and other 3D Products.
- If at any time an allegation of infringement of any third party rights is made in respect of the Software, Twikit may at its own expense modify or replace the Software so as to avoid infringement, provided that such replacement is with Software of a value, quality and efficiency at least equal to that of the Software; such modification or replacement are both subject to the approval of Customer.
- The indemnification obligations set forth in Section 14 states the entire liability and obligation of Twikit and the sole remedy of Customer in respect of (alleged) infringement of any Intellectual Property Rights caused by the Software.
- This Agreement may be amended or modified only by written agreement of a duly authorized representative of both Parties.
- Assignment – Subcontracting. Customer may not assign or transfer this Agreement to any third party (including without limitation its Affiliates) without the prior written consent of Twikit. Twikit shall be free to transfer or assign (part of) the Agreement to its Affiliates, parent or subsidiary. Twikit shall also be free to subcontract performance of this Agreement to its Affiliates, to individual contractors and to third party service providers without having to obtain Customer’s prior consent, provided that Twikit shall remain responsible towards Customer in respect of such subcontracted services.
- This Agreement and any appendix may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
- Entire Agreement – Severability – Waiver. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. Each Party acknowledges and agrees that in entering into this Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement as a warranty. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality or enforceability of the remainder shall not in any way be affected. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision.
- Governing Law. This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of the country of incorporation of Twikit without giving effect to the conflict of law principles thereof. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. In case of any dispute arising out of or relating to this Agreement, whether during or after its term, the Parties shall first attempt to amicably settle such dispute. Where no such amicable settlement can be reached within a reasonable period from the dispute having arisen, the dispute shall be submitted to the exclusive jurisdiction of the courts of the city/state of incorporation of Twikit.
- All notices under this Agreement shall be in writing and in English and addressed to the Parties as follows:
If to Twikit: [INSERT CONTACT PERSON AND ADDRESS]
If to Customer: [INSERT CONTACT PERSON AND ADDRESS]
Any address for notice may be changed from time to time by notice in writing from the appropriate Party. All notices required or allowed to be given hereunder shall be deemed to have been given when actually received by the addressee thereof, it being understood that notices shall generally be sent by hand delivery (including international courier service), facsimile service, recorded delivery post or registered mail with return or confirmed receipt requested or by some other method chosen by the Party sending the notice which shall require proof of receipt of such notice. The burden of proving receipt shall be on the Party sending the notice.
- Non-hiring. Parties agree not to approach, procure or otherwise actively solicit the employees of the other Party for the purpose of offering them employment. Parties agree to refrain from such activity for as long as the employee is in the employment of the other Party and for not less than six (6) months after such an employee ceases to be employed by the other Party.
- The respective obligations of the Parties under this Agreement under Sections 6, 8, 10, 12 and 13 shall survive termination of this Agreement.