IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE "SERVICES") OF TW GROUP LLC ("TW GROUP") IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY CLICKING/CHECKING THE "I AGREE" BUTTON/BOX, ACCESSING THE TW GROUP WEBSITE OR BY UTILIZING THE TW GROUP SERVICES YOU (THE "CUSTOMER") AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND ALL EXHIBITS, ORDER FORMS, AND INCORPORATED POLICIES (THE "AGREEMENT" OR "TERMS"). THE TW GROUP SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.
TW Group will provide the Services, and Customer may access and use the Services, in accordance with this Agreement. If Customer orders Services through an on-line registration page or an order form (each an "Order Form"), the Order Form may contain additional terms and conditions and information regarding the Services Customer is ordering. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which Customer chooses to use, those additional terms are hereby incorporated into this Agreement in relation to Customer's use of that Service.
1.1. "Account" means a version of the Software configured for Customer.
1.2. "Customer Communications" means communications sent via the Services, including emails, SMS and MMS messages, communications through websites and transactions, and other similar communications.
1.3. "Customer Data" means any data, information, programs, and other content provided or transmitted by Customer or its Representatives to the Services, including, without limitation, personal data, including personal data of Customer or any customer or Representative of Customer.
1.4. "Documentation" means the resources and documentation that TW Group makes available to Customer through the support section of the Services, API documentation, Customer notifications and warnings in the Software and other pages on the TW Group website.
1.5. "Intellectual Property Rights" means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, to, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
1.6. "Order Form" means any online or written form or other communication provided by TW Group evidencing the initial designation of the Service by the Customer and any subsequent orders to purchase the Services.
1.7. "Representatives" means any individual who is an employee of Customer or an affiliate, partner, service provider or such other person or entity as may be authorized by Customer to access the Services pursuant to Customer's rights under this Agreement.
TW Group may amend the Agreement from time to time due to changes to the Services, to account for developments under the law, or for any other reason. When material modifications are made, TW Group may (and where required by law, will) send an email to you at the last email address you provided to us pursuant to the Agreement to provide an updated copy of the Agreement. TW Group may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK TW GROUP'S WEBSITE TO VIEW THE THEN-CURRENT TERMS.
3.1. Access. Subject to the terms and conditions of this Agreement, TW Group grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term (as defined below). Customer may permit its Representatives to use the Services provided that Customer shall be responsible for each Representative's compliance with and breach of the Agreement.
3.2. Restrictions. Customer will not, and will not permit any Representative or other party to: (a) modify, adapt, alter, translate, or create derivative works of the Services; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (c) 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 Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to TW Group ); (d) bypass, delete, or disable any copy protection or security mechanisms of the Services; (e) use or demonstrate the Services in any other way that is in competition with TW Group ; (f) remove any notice of proprietary rights from the Services; (g) attempt to gain unauthorized access to, or disrupt the integrity, performance or security of the Services or the data contained therein; (h) use or copy the Services or Documentation, except as expressly allowed herein or (i) use the Services in violation of the Acceptable Use Policy. TW Group shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.
3.3. Downtime. Customer acknowledges that access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of TW Group.
3.4. Order Forms. Each Order Form is hereby incorporated into this Agreement by reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of a conflict with the terms contained in any Order Form, the terms contained in the body of this Agreement shall control unless express reference to the superseded term in the Agreement is set forth in the Order Form. Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other Customer-provided form are specifically null and void.
4.1. Setup Responsibilities. Customer shall be responsible for setting up and configuring the Services, including without limitation any provisioning of access to the Services to its Representatives. Customer shall be responsible for obtaining and maintaining, at Customer's expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by Customer or any Representative to access the Services from the Internet. In the event that TW Group assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
4.2. Customer Account. Customer is solely responsible for protecting and safeguarding Customer's account and passwords and/or keys or other access protocols that have been provided to Customer or that are generated in connection with Customer's use of the Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of its account and the Services. Customer is solely and fully responsible for all activities, including accrued charges, that occur in connection with its account and its use of the Services. In the event Customer believes Customer's account or the Services have been compromised, including any unauthorized use or access of the Services or any other known or suspected breach of security, Customer shall immediately notify TW Group by email, but in no event more than twenty-four (24) hours following discovery of such breach.
4.3. Suspension, Limitation and Termination of Access. TW Group shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer's access to the Services at any time in the event that TW Group determines, in its reasonable discretion, that (i) the Services are being used by Customer, or its Representatives, in violation of any applicable laws or regulations or this Agreement; (ii) the Services are being used by Customer in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Services by Customer adversely affects TW Group's equipment or service to others; (iv) TW Group is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which TW Group determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of the Services, Customer's account or Customer Data; or (vii) any amount due under this Agreement is not received by TW Group within fifteen (15) days after it was due. Without limiting the generality of this Section, TW Group shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer's right to use the Services pursuant to this Section 4.3.
5.1. Ownership. Customer acknowledges and agrees that the Services (including the Documentation) are protected by copyright and other laws relating to Intellectual Property Rights, and that the Services embody valuable confidential information of TW Group and its suppliers, the development of which required the expenditure of considerable time and financial resources. All right, title, and interest in and to the Services, and all worldwide Intellectual Property Rights therein and associated therewith, are the exclusive property of TW Group and its suppliers. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved by TW Group 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 Services, or any part thereof, including any right to obtain possession of any software, source code, data or other technical material related to the Services.
5.2. Continuous Development. Customer acknowledges that TW Group may continually develop, deliver and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, TW Group reserves the right to modify the Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event TW Group adds additional functionality to a particular Service, TW Group may condition the implementation of such modifications on Customer's payment of additional fees, provided that Customer may continue to use the version of the Services that TW Group makes generally available (without such features) without paying additional fees.
5.3. Feedback. In the event that Customer or its Representatives provide any comments or suggestions in connection with the Services, whether written or oral (collectively, the "Feedback"), TW Group, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Customer. Customer hereby grants TW Group, on behalf of itself and its Representatives, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into TW Group products and services.
5.4. Aggregated Data. TW Group may collect and derive from Customer Data aggregated data that does not identify Customer, any third-party entity or any natural persons, and use and disclose such aggregated data for TW Group's legitimate business purposes, which may include but is not limited to Services improvement, service and product development, research and marketing. TW Group may also sell aggregated data to a 3rd party. Additionally, TW Group may collect and review Customer Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and any other TW Group offerings.
6.1. Service Fees. In consideration for the Services, Customer will pay to TW Group the then-current fees set forth in the "Account" section of Customer's account in the Services unless otherwise set forth in an applicable Order Form (the “Fees”). TW Group may revise the fee schedule for the Services at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge, provided it will give thirty (30) days' advance notice before any change is applicable to Customer. Customer's continued use of the Services after a Fee increase will constitute Customer's agreement to the increase in Fees.
6.2. Payments. Customer agrees that TW Group may charge to Customer's credit card or other payment mechanism selected by Customer and approved by TW Group all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Services or set forth in the applicable Order Form.
6.3. Failure to Pay. Customer agrees that in the event TW Group is unable to collect the fees owed to TW Group for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Services or set forth in the applicable Order Form, TW Group may take any other steps it deems necessary to collect such fees from Customer and that Customer will be responsible for all costs and expenses incurred by TW Group in connection with such collection activity, including collection fees, court costs and attorneys' fees. Customer further agrees that TW Group may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
6.4. Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on TW Group's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees and the delivery of the Services. To the extent that TW Group charges any of the aforementioned taxes, they are calculated using the tax rates that apply based on the billing address provided by Customer. Such amounts are in addition to the Fees and will be billed to Customer's authorized payment method. If Customer is exempt from payment of any such taxes, Customer must provide TW Group with evidence of exemption. If Customer is not charged any of the aforementioned taxes by TW Group, Customer is responsible for determining if taxes are payable, and if so, self-remitting such taxes to the appropriate tax authorities in Customer's jurisdiction. Customer will make all payments of Fees to TW Group free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to TW Group will be Customer's sole responsibility, and Customer will provide TW Group with official receipts issued by the appropriate taxing authority, or such other evidence as TW Group may reasonably request, to establish that such taxes have been paid. Customer shall indemnify, defend, and hold TW Group harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
6.5. Expenses. If pre-approved by Customer in an Order Form, Customer shall reimburse TW Group for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Order Form. All costs and expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer.
7.1. Customer Personal Data. As discussed in Section 5.4, TW Group shall collect, use, disclose and otherwise process Customer Personal Data, and safeguard the privacy, confidentiality and security of Customer Personal Data.
7.2. Customer Responsibilities for Data and Security. Customer and its Representatives shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other account information required in order to access and use the Services. Customer shall have the ability to retrieve or export Customer Data out of the Services using the self-service tools TW Group makes available to the Customer. Customer is encouraged to make its own back-ups of the Customer Data and is responsible for backing up such data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the means by which Customer acquired Customer Data, and for the adequate security, protection and backup of Customer's Data. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Customer restoring files that are no longer usable.
7.3. Compliance with Applicable Laws. Customer shall be responsible for compliance with all applicable laws and regulations applicable to Customer's use of the Services, including Customer Communications and Customer Data, which laws and regulations shall include but not be limited to (a) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, the sending of electronic marketing messages and the sending of SMS and/or MMS text messages and (b) laws and regulations that apply to commerce, in each jurisdiction in which Customer will be sending marketing communications to a resident of the jurisdiction. Customer acknowledges and agrees that TW Group (y) does not control or monitor Customer Communications, or guarantee the accuracy, integrity, security or quality of such Customer Communications and (z) is not responsible for obtaining any necessary consents or permissions from recipients of Customer Communications. Customer represents and warrants that: (i) Customer is solely responsible for Customer Communications and Customer Data; (ii) Customer has the legal right to use and send all Customer Communications including Customer Data, and has obtained all necessary permissions, valid consents and releases from recipients of Customer Communications; (iii) the timing and purpose of all Customer Communications, campaigns and programs are in compliance with all applicable laws, rules and regulations; and (iv) TW Group's use of the Customer Communications as set forth in the Agreement shall not violate the rights of any third party or any laws, rules or regulations. With respect to email communications sent on Customer's behalf, TW Group and/or its respective affiliates or third-party service providers shall be an initiator but not a sender of such Customer Communications. Customer shall be deemed the sender of such messages and shall be solely responsible for complying with Customer's obligations as a sender under applicable law. With respect to text message communications sent on Customer's behalf, TW Group and/or its respective affiliates or third-party service providers shall be a provider but not a maker or initiator of such Customer Communications. Customer shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Customer's obligations as a maker or initiator under applicable law. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this Section and TW Group shall have no obligation to provide Services where TW Group reasonably believes that Customer has not so complied.
8.1. Use of Third Party Services. Customer acknowledges that the Software may interact with third party services (such as ecommerce shopping sites, inventory management, customer relationship management, enterprise resource planning and accounting software providers or third party logistics companies) (collectively, “Third Party Services”). Any use or integration by Customer of such Third Party Services, and any exchange of data between Customer and any Third Party Service provider, is solely between Customer and the applicable Third Party Service provider. TW Group does not warrant or support, and shall have no liability for, any Third Party Services. Customer acknowledges that it will only use Third Party Services in accordance with the Documentation.
8.2. Third Party Services and Customer Data. If Customer installs or enables a Third Party Service for use with the Software or the Services, Customer grants TW Group permission to allow the provider of that Third Party Service to access Customer Data as required for the integration and interoperation of that Third Party Service with the Services. TW Group is not responsible for any disclosure, modification or deletion of Customer Data by a Third Party Service.
8.3. Integration with Third Party Services. The Software may contain features designed to interoperate with a Third Party Service. To use such features, Customer may be required to obtain access to a Third Party Service directly, and may be required to grant TW Group access to Customer account(s) on the Third Party Service. TW Group cannot guarantee the continued availability of such Third Party Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation.
8.4. Third Party Service Data. Upon granting access to a Customer account on a Third Party Service, the Software may interact with data that may exist on or subsequently be added to such Third Party Service. TW Group is not responsible for any disclosure, modification or deletion of data on a Third Party Service by the Software or the Services. Customer acknowledges and agrees that it is responsible for any security incident on Customer’s systems that results in the disclosure of such data. Customer agrees to promptly (and in any event within 48 hours) delete any and/or all such data that it has received from a Third Party Service upon request by a user or from TW Group and provide certification of such deletion to TW Group as it may reasonably request, including a signed writing from an officer of Customer.
9.1. Mutual Representations and Warranties. TW Group and Customer each represents and warrants that: (i) it has full corporate right, power, and authority to enter into this Agreement and (ii) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound.
9.3. Limited Warranty. TW Group warrants that the Services, when used in accordance with the terms of this Agreement, will perform substantially in accordance with the Documentation during the term of this Agreement. The foregoing warranty shall not apply to performance issues of the Services resulting from (i) content provided by or passed through Customer or third parties in connection with the Services (including Customer Data); (ii) Customer's data structures, operating environment, equipment or other technology; (iii) the use or combination of the Services with any other software, services or hardware not supported by TW Group ; (iv) causes external to the Services, such as problems with the hardware, network or other infrastructure with which the Services are used; (v) unauthorized or improper use of the Services; (vi) any modification of the Services by Customer or its Representatives; or (vii) third party components incorporated into the Services, including open source software. Provided that Customer notifies TW Group in writing of any breach of the foregoing warranty during the term of this Agreement, TW Group shall, as Customer's sole and exclusive remedy, use commercially reasonable efforts to correct such non-conformance and if TW Group fails to remedy the non-conformity, Customer may terminate the Agreement.
9.4. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 9.3 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE DOCUMENTATION) ARE PROVIDED "AS IS," AND TW Group MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY TW GROUP, AND ANY OFFERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TW Group DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
10.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TW GROUP, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS OR SUPPLIERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER'S OR ANY OTHER THIRD PARTY'S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT TW Group HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF TW GROUP, ITS LICENSORS AND VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY TW Group TO YOU IN THAT SIX (6) MONTH PERIOD.
10.2. Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 10 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees 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.
11.1. Confidential Information. During the term of this Agreement, each party (the "Disclosing Party") may provide the other party (the "Receiving Party") with certain information regarding the Disclosing Party's business, technology, products, or services, or other confidential or proprietary information (collectively, "Confidential Information") in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if in tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary. For the avoidance of doubt, the Services, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of TW Group.
11.2. Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who are subject to confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party 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. At the Disclosing Party's request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.
11.3. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose 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 the Receiving Party promptly (to the extent legally permitted) notifies the Disclosing Party in writing of such required disclosure and reasonably cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11.4. Remedies. Any breach or threatened or attempted breach of this Section 11 may result in immediate, irreparable harm for which monetary damages would be an inadequate remedy. If a court of competent jurisdiction finds that the Receiving Party has breached (or attempted or threatened to breach) any of the obligations set forth in this Section 11, the Receiving Party agrees that, without any additional findings of irreparable injury or other conditions to injunctive relief, it will not oppose the entry of an appropriate order compelling its performance and restraining it from any further breaches (or attempted or threatened breaches).
12.1. By TW Group. TW Group will defend at its expense any suit brought against Customer, and will pay any settlement TW Group makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Services infringe or misappropriate any Intellectual Property Rights in the U.S., Canada, European Union member countries or the United Kingdom. If any portion of the Services becomes, or in TW Group's opinion is likely to become, the subject of a claim of infringement, TW Group may, at TW Group's option: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Services to be non-infringing without materially impairing the functionality of the Services; or (c) terminate this Agreement and refund to Customer the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, TW Group shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Customer Data (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by TW Group ; (y) any modification of the Services by any person other than TW Group ; (z) modification of the Services based upon specifications furnished by Customer (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a "Customer Indemnity Responsibility"). This Section 12.1 states the sole and exclusive remedy of Customer and the entire liability of TW Group, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 12.1.
12.2. By Customer. Customer will indemnify, defend and hold TW Group, its officers, directors, affiliates, subsidiaries, licensors, agents and employees (each a "TW Group Party") harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys' fees and court costs arising out of or relating to: (a) a Customer Indemnity Responsibility; (b) Customer's breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; or (c) the use, transmission, access, disclosure, or other processing of Customer Data.
12.3. Procedure. The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
13.1. Term. Unless otherwise specified on an applicable Order Form, this Agreement commences on Customer's registration for an Account, and shall continue in effect for thirty (30) days (the "Initial Term"). Thereafter, and unless otherwise specified on an Order Form, this Agreement and each applicable Order Form shall automatically renew for successive thirty (30) day terms (each a "Renewal Term"), unless either party provides notice to the other party of its intention not to renew prior to expiration of the Initial Term or the then-current Renewal Term. Customer must provide at least five (5) days prior notice and TW Group must provide at least fifteen (15) days prior notice. Notification of such non-renewal from Customer to TW Group must be provided as detailed in the Cancellation page on the TW Group website, which must be confirmed by TW Group. The Initial Term and all Renewal Terms will collectively be referred to as the "Term".
13.2. Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. TW Group may terminate this Agreement at any time without cause and without notice. In addition, TW Group may terminate this Agreement upon notice to Customer if (a) Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors; (b) in the event of non-payment in accordance with Section 6; or (c) Customer is on a free-tiered account and such account is inactive for a period of twelve (12) months or more. Upon termination, Customer shall not be entitled to any refund of any Fees previously paid to TW Group for Services except in the event TW Group terminates without cause or Customer terminates due to TW Group's uncured material breach, in which case Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to TW Group.
13.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) each party shall comply with the obligations to return or destroy all Confidential Information of the other party, as set forth in Section 11.2. Additionally, TW Group shall have no obligation retain any Customer Data after any termination or expiration of this Agreement and may delete all Customer Data, unless required by applicable law. All liabilities accrued under this Agreement prior to the effective date of termination and the following Sections will survive expiration or termination of this Agreement for any reason: 1 (Definitions), 2 (Modification of the Agreement), 4.3 (Suspension, Limitation and Termination of Access), 5 (Intellectual Property), 6 (Charges, Payments, and Cancellations), 9.4 (Disclaimer), 10 (Limitation of Liability), 11 (Confidentiality), 12 (Indemnification), 13.3 (Effect of Termination) and 14 (Miscellaneous).
14.1. Marketing. Customer agrees that TW Group may refer to Customer by name, logo and trademark in TW Group's marketing materials and website. Customer acknowledges and agrees that TW Group does not certify or endorse, and has no obligation to certify or endorse, any of Customer's products, services, or content.
14.2. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Oklahoma, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in Oklahoma County, Oklahoma for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer may not bring any suit or action against TW Group for any reason whatsoever more than one (1) year after the cause of action accrued.
14.3. Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any software, technology or information forming a part of the Services or the Documentation in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction.
14.4. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.5. Waiver. 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.
14.6. No Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of TW Group. Any assignment by Customer without the prior written consent of TW Group shall be null and void. TW Group may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party's permitted successors and assigns.
14.7. Force Majeure. Without limiting any other provision in the Agreement, TW Group, or any TW Group Party, is not responsible or liable to any Customer for delay or failure to perform its obligations hereunder in the event that any of TW Group or TW Group Parties' operations or activities are affected by any cause or event beyond the sole and reasonable control of the applicable TW Group Party (as determined by such party in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.
14.8. Independent Contractors. Each party's relationship to the other party is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
14.9. Notices. Where TW Group requires you provide an email address, you are responsible for providing TW Group with your most current email address. In the event that the last email address you provided to TW Group is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, TW Group's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to TW Group at the following email address: email@example.com. Notice shall be deemed to have been duly given on the first business day following successful email transmission to TW Group.
14.11. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us. We will do our best to address your concerns.