Hosting Terms and Conditions
These “Hosting- Standard Terms and Conditions” in conjunction with the Hosting Agreement constitute the entire agreement between TwinEngines and the customer signing the Hosting Agreement.
1. SCOPE OF SERVICE.
1.1 SERVICES. TwinEngines will provide the application services as set forth in the Hosting Agreement which shall be mutually agreed upon, attached hereto or reference to this Agreement. The Hosting Agreement may be modified only by mutual written agreement. Changes or additions to work performed under each Hosting Agreement may require changes in the resources provided by TwinEngines and may result in additional costs or charges in Hosting Agreement.
1.2 HOSTING AGREEMENT. Each Hosting Agreement shall become a part of this Agreement, and, unless otherwise clearly specified in writing, the terms and conditions of each Hosting Agreement shall be independent of and shall have no effect on, the provisions of any other Hosting Agreement.
1.3 ADDITIONAL SERVICES. Client may order additional TwinEngines services (“Additional Services”) by contacting TwinEngines. If this order applies to additional Hosting service, TwinEngines will send Client a Hosting Agreement specifying the terms of the TwinEngines Application(s) and/or application service(s), including the payment(s) due for each ordered item. If the order applies to TwinEngines’ consulting and development practice, TwinEngines will send a Statement of Work specifying the terms of the services to be performed, including the payment(s) due for those services. Client may accept the terms of the TwinEngines services by signing the Hosting Agreement or Statement of Work and returning it to TwinEngines. All executed Hosting and Statement of Work without further action will become part of this Agreement and will be covered by all of this Agreement’s terms and conditions.
“ACCEPTABLE USE POLICY” shall mean TwinEngines’ user policy on the use of the TwinEngines Application(s) and its Global Network. The Acceptable Use Policy is incorporated by reference and is available for review at www.twinengines.com/acceptableuse. “ADDENDA” shall mean any written document executed by both parties which modifies the terms of this Agreement or any executed Hosting Agreement. “AGREEMENT” shall mean this Agreement, any and all Exhibits attached hereto and all Hosting Agreements attached simultaneously with the execution of this Agreement or agreed upon and executed subsequently. “CONTENT” means any and all text, multimedia or images (graphics, audio and video), data and the like provided by Client and installed on a server, which shall be subject to the terms and conditions set forth in the Hosting Agreements and Acceptable Use Policy.
“CUSTOMIZATION” shall mean any customized deliverable created by TwinEngines as part of the TwinEngines Application(s).
“DOCUMENTATION” shall mean any materials supplied by TwinEngines concurrently with the delivery of and for use with the TwinEngines Application(s).
“TWINENGINES APPLICATION” shall mean the collective bundling of any and all Implementation Services, Additional Services, Customization, access to the Global Network, Hardware, and TwinEngines Software, as outlined in each executed Hosting Agreement and/or Statement of Work.
“TWINENGINES SOFTWARE” shall mean software, which was developed by TwinEngines independently of this Agreement, or pursuant to the terms of this Agreement as may be required for Customization.
“GLOBAL NETWORK” shall mean TwinEngines’ Internet-based data center.
“HARDWARE” shall mean any computing or networking equipment TwinEngines uses and/or provides to Client for its use as part of the TwinEngines Application(s).
“IMPLEMENTATION SERVICES” shall mean the implementation services provided by TwinEngines in conjunction with the TwinEngines Application(s) and may be set forth in the Hosting Agreement(s) as applicable.
“HOSTING AGREEMENT” shall mean a written order for any TwinEngines Application accepted by TwinEngines and executed by both parties, which shall be subject to the terms and conditions of this Agreement.
3.1 RIGHTS GRANTED. Subject to the terms and conditions of this Agreement, TwinEngines grants to Client a limited, nontransferable, non-exclusive license to use the TwinEngines Application(s) selected in the executed Hosting Agreements attached hereto for the sole purpose of supporting the operations of Client’s business, as may be described in the Hosting Agreements. Notwithstanding anything to the contrary, Client may not use the TwinEngines Applications in a resale capacity, or to process and/or analyze the data of a third party.
3.2 OWNERSHIP. Client acknowledges and understands that all components of the TwinEngines Applications, including any and all TwinEngines Software, provided to Client shall remain at all times the sole and exclusive property of TwinEngines and that such components contain trade secrets and other valuable proprietary and confidential information of TwinEngines.
3.3 EFFECTIVE DATE. This Agreement shall be effective on the date it is executed by TwinEngines, and shall remain in effect for the Term unless terminated in accordance with the provisions set forth in this Agreement.
3.4 RESTRICTIONS. Client agrees it shall not: (a) alter or modify the TwinEngines Software or any part thereof; (b) copy or duplicate, or permit a third party to copy or duplicate, the TwinEngines Software or any part thereof, or (c) reverse engineer, decompile or disassemble TwinEngines Software.
3.5 NON-TRANSFERABLE. Except as set forth in Section 11.2, Client agrees not to license, sell, grant any security interest in, assign, transfer, lease or disclose the TwinEngines Software or TwinEngines Applications to any third party.
4.1 AGREEMENT TERM. The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue and remain in effect unless earlier terminated pursuant to the terms of this Agreement, until such time as the final Hosting Agreement expires or earlier terminates.
4.2 HOSTING AGREEMENT. Each individual Hosting Agreement shall include a period of performance.
5.1 FEES. As compensation for the license of the TwinEngines Application(s) granted to Client and the provision of services as applicable, Client agrees to pay the amount(s) specified in each executed Hosting Agreement. Any fee specified in a Hosting Agreement will only remain in effect until the date specified in the Hosting Agreement.
5.2 PAYMENT TERMS. Unless otherwise specified in the Hosting Agreement, payments will be due and payable to TwinEngines within thirty (30) days of the date of TwinEngines’ invoice. Such invoices will be generated in accordance with the terms specified in each Hosting Agreement. TwinEngines reserves the right, in TwinEngines’ absolute discretion, to perform a credit check on Client.
5.3 TAXES. Client shall be responsible for the payment of all taxes associated with this Agreement or its use of the TwinEngines Application(s) (other than taxes based on TwinEngines’ net income), including, but not limited to, personal property taxes, import taxes, taxes on telecommunication services, information services, data processing services or similar governmental charges that may be assessed by any jurisdiction, whether based on gross revenue or delivery of products or services. If TwinEngines is required to pay any such taxes directly, Client shall, upon receipt of TwinEngines’ invoice, reimburse TwinEngines for any amount that TwinEngines has paid. Notwithstanding the above, Client shall not be required to pay those taxes from which Client is legally exempt.
5.4 INTEREST. Any payments not made when due will be subject to an interest charge of 1.5% per month, unless such rate of interest is not permitted by applicable law in which case, the interest charge hereunder shall be the highest interest permitted by applicable law.
6.1 LIMITATION. Unless otherwise expressly provided in a Hosting Agreement, TwinEngines does not warrant (a) that the functions contained in the TwinEngines Application(s) provided hereunder will meet Client’s requirements or (b) that the operation of the TwinEngines Application(s) will be uninterrupted or error free. Notwithstanding anything to the contrary herein: (a) TwinEngines will not be liable for any losses, claims, expenses or damages arising out of use, or inability to use, the products or services provided hereunder; and (b) TwinEngines will not be liable for unauthorized access to or alteration, theft or destruction of Client’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a result of TwinEngines’ gross negligence or intentional misconduct.
6.2 EXCLUSION. THE WARRANTIES AND GUARANTEES EXPRESSLY PROVIDED IN A HOSTING AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NONINFRINGEMENT.
7. INDEMNITY OBLIGATIONS.
7.1 TWINENGINES INDEMNITY OBLIGATIONS. (a) In the event that any suit is brought based on a claim that the products or services delivered by TwinEngines infringe any copyright, trade secret, patent or other property right of any third party, Client’s exclusive remedy and the only obligation of TwinEngines shall be for TwinEngines, at its sole option, (i) to defend Client against, and if determined appropriate in TwinEngines’ sole and exclusive judgment, settle a claim of infringement, all at TwinEngines’ expense, or (ii) to procure the right of Client to continue to use the TwinEngines Application at issue, or (iii) to replace or modify the infringing portion of the TwinEngines Application at issue so that it becomes noninfringing. If none of these alternatives is reasonably available in TwinEngines’ sole and exclusive judgment, TwinEngines will terminate Client’s use of the TwinEngines Application at issue and refund the Monthly Hosting and Application Service Fee (as set forth in the Hosting Agreement(s)) paid by the Client to TwinEngines for three (3) months of use of such TwinEngines Application by Client. (b) Exclusions. TwinEngines shall not be liable for infringement claims based on (i) the combination, operation or use of TwinEngines Applications with hardware, data, content or software not supplied by TwinEngines; or (ii) modifications to the TwinEngines Software if the modifications were not made by TwinEngines.
7.2 CLIENT INDEMNITY OBLIGATIONS. Client agrees to indemnify, defend and hold harmless TwinEngines and its directors, officers, employees and agents, against any and all losses, damages, liabilities, judgments, awards and costs (including legal and expert witness fees and expenses) arising out of or related to claims by third parties arising from Client’s use of TwinEngines Applications provided by TwinEngines hereunder excluding, however, proprietary rights infringement claims under Section 7.1.
8. LIMITATION OF LIABILITY.
8.1 LIMITATION OF LIABILITY. TwinEngines’ entire liability and Client’s exclusive remedies against TwinEngines (whether in contract, tort, warranty, or otherwise) are set forth in this Section 8, Section 6 WARRANTIES, Section 7 INDEMNITY OBLIGATIONS, Section 9 TERMINATION, and the Hosting Agreement(s), as applicable. Except as expressly provided otherwise in this Agreement, TwinEngines’ total liability to Client for damages (regardless of the form of action, whether in contract, tort, warranty or otherwise) shall in no event exceed the Monthly Hosting and Application Service Fee for the Application at issue paid by the Client to TwinEngines under this Agreement for the one (1) month period immediately preceding the event which caused the damage or injury.
8.2 DISCLAIMER OF DAMAGES. TwinEngines shall not be liable for any special, incidental, indirect or consequential damages or for loss of profit, revenue, or data, even if TwinEngines shall have been advised of the possibility of such potential loss or damages. Client further agrees that TwinEngines shall not be liable for any claim or demand against Client or TwinEngines by any third party, except to the extent such liability is expressly allocated to TwinEngines by Section 7 INDEMNITY OBLIGATIONS or Section 8 LIMITATION OF LIABILITY.
9.1 TERMINATION FOR BREACH. Either party may immediately terminate this Agreement and the license granted herein in the event that the other party materially breaches any obligation under this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach. Failure to pay any sum when due and payable hereunder, regardless of amount, shall be deemed a material breach. Unless otherwise agreed in writing, termination of this Agreement shall also automatically terminate all Hosting Agreements which are incomplete at the time of termination. Notwithstanding anything to the contrary, either party shall have the right to terminate this Agreement and the license granted herein in the event either party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (c) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, or (d) has wound up or liquidated, voluntarily or otherwise. Termination of this Agreement shall not relieve either party of its obligations regarding confidentiality under Section 11 below. Lastly, no cure period shall be afforded in an event of a breach of Sections 3 or 11.1, for which either party shall be entitled to all legal and equitable remedies, including but not limited to, injunctive relief, whether temporary, preliminary or final without proof of actual damages.
9.2 EFFECT OF TERMINATION. Termination of this Agreement for any reason shall not affect any sums due to TwinEngines under this Agreement or any additional remedies provided by law or equity to either party. All rights that have been granted to Client shall immediately be terminated and all unpaid charges accrued under this Agreement shall become immediately due and payable upon the happening of any event of termination. In the event of a termination of this Agreement, each party agrees to return to the other within sixty (60) days of a request, any property, data sheets, schematics, samples, customer lists, confidential information, in whatever form or media which are used by a disclosing party or which are furnished to a recipient.
10. SOFTWARE AND WORK PRODUCT DEVELOPED UNDER AGREEMENT.
10.1 TITLE. TwinEngines shall retain title to and ownership of any Hardware provided by TwinEngines, all TwinEngines Software, including any software developed under any Hosting Agreement issued hereunder (“Project Software”), and any other products of its work hereunder which may consist of reports, designs, data or similar materials (“Work Product”); provided, however, that TwinEngines will not have ownership of Content incorporated into Project Software or Work Product. Project Software is subject to restrictions as may be applicable to any TwinEngines Software incorporated therein.
10.2 CLIENT OWNERSHIP. Client shall retain title to and all ownership rights in Content but grants TwinEngines the right to access and use Content for the purpose of complying with its obligations under this Agreement and any applicable Hosting Agreement. Subject to Client’s prior written consent, upon terms mutually agreed in writing by the parties hereto, TwinEngines shall be entitled to copy, distribute and license to third parties Client’s Content, in whole or part.
11. GENERAL PROVISIONS.
11.1 NONDISCLOSURE. Each party shall retain in confidence all proprietary and confidential information transmitted to the other that the disclosing party has identified in writing, or orally and then subsequently identified in writing, as being proprietary and/or confidential, and will make no use of such information except under the terms and during the Term of this Agreement. Client agrees to use all reasonable precautions and take all necessary steps to prevent TwinEngines Applications from being acquired by unauthorized persons, and to take appropriate action, by instruction, agreement, or otherwise, with regard to all persons permitted access to TwinEngines Applications, in order to ensure TwinEngines Applications are protected. Client shall not disclose the TwinEngines Applications to any person for any purpose other than as provided in this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (a) it has rightfully received from another party prior to its receipt from the disclosing party; (b) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence, (c) enters the public domain or becomes generally known to the public by some action other than breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party. Each party shall safeguard proprietary and confidential information disclosed by the other using the same degree of care it uses to safeguard its own proprietary and confidential information but, in no event, shall use less than a reasonable degree of care. Each party’s obligation under this paragraph shall extend for a period of three (3) years following termination or expiration of this Agreement.
11.2 ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by either party by operation of law or otherwise, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party; PROVIDED, HOWEVER, that such consent shall not be required if either party assigns or transfers this Agreement to a wholly owned subsidiary or in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless in the case of such an assignment or transfer by Client, the assignee or surviving entity is a competitor of TwinEngines.
11.3 GOVERING LAW. This agreement and all Hosting Agreements shall be governed by and construed in accordance with the laws of the State of Georgia.
11.4 WAIVER AND AMENDMENTS. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless consented to by both parties in writing. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
11.5 SEVERABILITY. Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law and equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected.
11.6 ENFORCEMENT. Both parties agree to pay all reasonable costs and expenses the other party incurs in successfully enforcing this Agreement, including expert witness and reasonable attorneys’ fees.
11.7 FORCE MAJEURE. Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of your Web site or other occurrences which are beyond either party’s reasonable control. In the event that TwinEngines is prevented or delayed in the delivery or installation of TwinEngines Applications for reasons beyond its control, such delivery or installation shall take place as soon thereafter as is reasonably possible.
11.8 NOTICE. Any notice, demand or other communication which may or is required to be given under this Agreement must be in writing and must be: (a) personally delivered; (b) transmitted by United States postage prepaid mail, registered or certified mail, return receipt requested; (c) transmitted by reputable overnight courier service, such as Federal Express; or (d) transmitted by legible facsimile (with answer back confirmation). Notices or invoices shall be deemed received when delivered. TwinEngines and Client may change their addresses for purposes hereof by notice given to the other party in accordance with the provisions of this Section 11.8. Notices hereunder shall be directed as follows: (i) to Client at the address set forth below its signature and (ii) to TwinEngines at the following address:
154 Krog Street, Suite 140
Atlanta, GA 30307
Tel: (404) 522-4262
Fax: (404) 584-8003
11.9 HIRING. Client and TwinEngines agree that during the term of this Agreement and for one (1) year thereafter, they will not, without prior written consent of the other, employ or offer employment to any employee of the other who has worked to a material extent on matters relating to this Agreement or the provision of TwinEngines services by TwinEngines hereunder.
11.10 SURVIVAL. The terms of Sections 3.2, 3.4, 5.3, 5.4, 6, 7, 8, 9.2, 10.1, 11.1, 11.3, 11.8, 11.9, and 11.10 shall survive the termination or expiration of this Agreement.
11.11 ACCEPTABLE USE POLICY. Client agrees at all times, and to require and enforce its employees, agents and contractors at all times, to comply with the TwinEngines Acceptable Use Policy, which is labeled Exhibit B. Client agrees to defend, indemnify and hold TwinEngines harmless from any damages, costs and expenses incurred by TwinEngines caused by the breach of this provision.
11.12 THIRD PARTY RIGHTS. The provisions of this Agreement are solely for the benefit of the parties hereto and not for the benefit of any third parties.
11.13 ENTIRE AGREEMENT. This Agreement (including all Hosting Agreements and Addenda, if any) contains the full understanding between the parties and supercedes all prior representations or agreements, whether oral or written, with respect to such matters. The Agreement (including all Hosting Agreements and Addenda, if any) may only be changed by a written document signed by both parties. To the extent of any inconsistencies between the Agreement and a Hosting Agreement, the Hosting Agreement shall control, except if the Agreement is modified by Addenda, then the Addenda shall control.
11.14 RELATIONSHIP OF PARTIES. The parties hereto are independent businesses, and nothing in this Agreement or the conduct of the parties pursuant hereto shall establish a relationship of principal/agent, franchiser/franchisee, employer/employee, master/servant, or otherwise. Neither party shall have any authority to represent the other, to bind the other, or to hold itself out as having authority to do any of the foregoing.