TOS - TWMP AGREEMENT

NOTE: This is the TWMP SOFTWARE AS A SERVICE AGREEMENT relevant for merchants wishing to have an Insider Portal and utilize the services provided by TWMP. For general site usage terms, please see here.
Please read this Agreement carefully and do not use the Services if you do not agree to it.

LAST UPDATED: JAN 25, 2024

 

TWMP SOFTWARE AS A SERVICE AGREEMENT

IMPORTANT: TO BECOME ELIGIBLE TO USE TWMP’S SERVICES, YOU MUST READ THIS TWMP SOFTWARE AS A SERVICE AGREEMENT, INCLUDING THE SERVICES POLICIES AND ANY OTHER DOCUMENT OR TERMS AND POLICIES REFERENCED OR INCORPORATED HEREIN, (THIS “AGREEMENT”) CAREFULLY BEFORE ACCEPTING IT. BY CLICKING THE "I ACCEPT" BUTTON, OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G. YOU ARE NOT A MINOR) AND THAT, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “MERCHANT”, “YOU”, OR “YOUR”, AS USED IN THIS AGREEMENT SHALL REFER TO SUCH PERSON OR ENTITY. IF YOU ARE NOT LAWFULLY ABLE, OR DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.

 

Effective Date

This Agreement is between Top Web Marketing Platforms LLC (referred to as “TWMP”, “we”, “us” or “our”) and you, collectively referred to as the Parties or each a Party. This Agreement contains the terms and conditions that govern your access to and use of the software as a service that you have ordered from TWMP or an authorized distributor or partner by executing an Ordering Document that accompanies and incorporates this TWMP software as a service Agreement and is binding the date it is signed by both Parties (Effective Date).

 

Applicability of Agreement

This TWMP Software as a Service Agreement is valid for the Ordering Document, which this agreement accompanies.

 

Agreement Definitions

Software as a Service consists of the TWMP’s program(s), and the storage, maintenance, management, and monitoring activities that TWMP performs for all such programs, and includes the right to use the TWMP program(s), support services for such programs, as well as any other services provided by TWMP to you, as defined in the Ordering Document (collectively Services).
The term Documentation refers to the user tours as well as any other materials, manuals, guides and FAQs provided by TWMP as part of the Services.
The term TWMP programs refers to the software products owned or distributed by TWMP to which TWMP grants you access as part of the Services, including Documentation and any program updates provided as part of the Services.
The term Personnel refers to a Party and any employee, contractor, officer and agent of that Party.
The term Authorized Users shall mean those individuals (you or any of your Personnel) authorized by you or using on your behalf the Services through owner and merchant accounts as part of your services to your customers.
The term End Users shall mean those individuals (your customers, prospective customers, etc.) permitted by you to use the Services through insider or tourist accounts.
The term Your Data refers to the data provided by you, your Authorized Users and your End Users that resides in your services environment.
The term Insider Portal refers to your Services environment (including any TWMP provided servers) and the term Support Platform refers to the support environment you can use to get support from us.
The term Fee means the fee or fees set out on the Ordering Document.
The term your Environment means the actual physical location(s), Personnel and computing environment(s) including all hardware, software, information technology and telecommunications services and systems controlled by the Merchant.

 

Rights Granted

Upon TWMP’s acceptance of your order and for the duration of the Services Term as defined herein, you have the non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your business use and subject to the terms of this Agreement. In consideration for payment of the Fees, TWMP provides you with your Insider Portal to access and use the Services. You may allow your Authorized Users and your End Users to use the Services for this purpose and you are responsible for their compliance with the Agreement. The Services are provided as described in, and subject to, the services policies and normal operating procedures referenced in the Ordering Document, the Insider Portal, the Support Platform and this Agreement.
You acknowledge that TWMP has no delivery obligation and will not ship copies of the Insider Portal to you as part of the Services. You agree that you do not acquire under the Agreement any license to use any TWMP programs specified in the Ordering Document in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services thereunder, your right to access or use the Insider Portal and the Services as specified in the Ordering Document shall terminate.

 

Ownership and Restrictions

You retain all ownership and intellectual property rights in and to Your Data. TWMP or its licensors retain all ownership and intellectual property rights to the Services and Insider Portal. TWMP retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.
Third party technology may be appropriate or necessary for use with some Insider Portals. Your right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by TWMP and not under this Agreement.


You may not:

  • remove or modify any program markings or any notice of TWMP’s or its licensors’ proprietary rights;
  • make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations;
  • modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to TWMP;
  • disclose results of any Services or program benchmark tests without TWMP’s prior written consent;
  • refuse any update of the Services; and
  • license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Insider Portal or materials available to any third party, other than as expressly permitted under the terms of this Agreement.

The rights granted to you under this Agreement are also conditioned on acknowledging and agreeing to the following:
  • you will provide all reasonable assistance, cooperation and required materials to TWMP in order to enable us to supply the Services in an efficient and timely manner;
  • you will permit TWMP and our Personnel to have reasonable access to your Insider Portal and communication with your Authorized Users for the purposes of supplying the Services. TWMP shall have no access to your End Users’ Personal Data;
  • you will ensure that only your Authorized Users shall use or have access to the non-End User parts of your Insider Portal and Your Data, and such use and access will be in accordance with the terms and conditions of this Agreement;
  • you will ensure that any user account on the Insider Portal (e.g., on a “named user” basis) will not be shared or used by more than one individual (unless such account is reassigned in its entirety to another user, in which case the prior user shall no longer have any right to access or use the Insider Portal);
  • you will ensure that all Authorized Users maintain strong passwords and keep their login credentials secure and confidential;
  • you are responsible for maintaining the security of your accounts and passwords. TWMP cannot and will not be liable for any loss/damage or breach of security from your failure to comply with this;
  • you are responsible for all content posted and activity that occurs under your Insider Portal. This includes content posted by the End Users or Authorized Users who have logins or accounts associated with your Insider Portal;
  • except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means;
  • you are responsible for your use of the Services and must ensure that no person uses the Services to break any law or infringe on any person’s rights including but not limited to intellectual property rights; to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or in any way that damages, interferes with or interrupts the supply of the Services;
  • the use of the Services will be at your own risk and you are responsible for all End Users and Authorized Users using the Services;
  • you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services and to ensure the integrity of Your Data;
  • the technical processing and transmission of the Services, including your content and Your Data, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices;
  • if TWMP wishes to alter the delivery of the Services, which requires a change to the Insider Portal (including reconfigurations or interface customizations, etc.), the Merchant will give any assistance to TWMP and accept any such changes to the Insider Portal and Services, that TWMP reasonably requires; and
  • TWMP may pursue any available equitable or other remedy against the Merchant as a result of a breach by the Merchant of any provision of this Agreement.

 

Services

On or from the Effective Date and during the Services Term, TWMP agrees to provide the Services described in the Ordering Document and in accordance with this Agreement. TWMP reserves the right to change or remove features of the Insider Portal from time to time. TWMP reserves the right to refuse any request in relation to the Services that it deems inappropriate, unreasonable, or illegal. We do not screen all content uploaded onto your Insider Portal, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content or rewards available via your Insider Portal that we deem inappropriate, illegal, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violating any party’s intellectual property rights or this Agreement, as soon as we become aware of it.

 

Restrictions on Use of the Services

You must not access or use the Services except as permitted by this Agreement and may not do or authorize the commission of any act that would or might invalidate or be inconsistent with this Agreement, our intellectual property rights, the Services or any of TWMP programs. You acknowledge and agree that this Agreement incorporates by reference the terms of any acceptable use policy, Services policies, normal operating procedures, and Documentation as set out in the Ordering Document, the Insider Portal, the Support Platform, this Agreement, or as provided to the Merchant as instructions from time to time. You further acknowledge and agree that this Agreement incorporates by reference all the legal documents on the Insider Portal as amended from time to time (including, but not limited to, your Insider Portal’s Terms of Use, Privacy Policy, Cookies Policy, Cookie Settings, Terms of Sale, and General Conditions of Rewards).


Without limiting the foregoing provisions:

  • you agree that you must not and will not permit any person to: (a) resell, assign, transfer, distribute or provide others with access to the Services; (b) “frame”, “mirror” or serve any of the Services on any web server or other computer server over the Internet or any other network; (c) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Services; (d) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the Services; or (e) use the Services in any way which is in breach of any statute, regulation, law or legal right of any person within the USA or the jurisdiction in which you or your Personnel are located.
  • you agree not to use or permit use of the Services, including uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; or (e) constitute an infringement of intellectual property or other proprietary rights.
  • you agree that you must not and will ensure each Authorized User does not: (a) introduce malicious programs into our system (e.g. viruses, worms, trojan horses, e-mail bombs); (b) reveal your Authorized Users’ account password to others or allow use of the Owner or Merchant accounts by others; (c) use the Services to make fraudulent offers of goods or services; (d) use the Services to carry out security breaches or disruptions of a network. Security breaches include, but are not limited to, any security breach incident in connection with Personal Data, namely accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorized to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing/monitoring, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes; or (e) use any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the Services;
  • you agree that you will have at least three (3) rewards per category on the Insider Portal at all times and you will follow all instructions and necessary steps to protect the reputation of your Insider Portal.

In addition to any other rights afforded to TWMP under this Agreement, TWMP reserves the right to remove or disable access to any material that violates the foregoing restrictions. TWMP shall have no liability to you when TWMP takes such action. You agree to defend and indemnify TWMP against any claim arising out of a violation of your obligations under this section.

 

Support Services and Levels

You are entitled to Basic Level Support Services under this Agreement at no extra cost to you. Basic Level Support Services provide the following:

  • Free Insider Portal maintenance
  • Free upgrades. It does not include extensions / new features.
  • Free Initial training (20 hours max)
  • Free online support through the Support Platform
  • Free rewards quality control
  • Free 50 Royalty free photos. Beyond that, you can purchase additional photo packages, as needed.
  • Free rewards management for the initial 3 months. After that, if you wish, you can purchase Rewards Management Level Support Services, as needed

You can upgrade at any time to any other Support Level and downgrade back down to Basic Support Level, as needed. Any Support Level above Basic is offered at extra cost according to our current price lists. We also offer custom quotes for pay-per-request support. Your Support Level and Support Services provided under this Agreement are specified in the Ordering Document.
During the Services Term, TWMP will provide the Support Services in accordance with your Service Level during the Support Hours provided that:
  • You notify TWMP about the applicable Services for which you require support by opening a ticket on our Support Platform, as applicable;
  • The support services you are requesting are within the scope of the Basic Level or for any other level of support, or pay-per-request support, you have accepted the quote and pre-paid it; and
  • Where required, you assist with investigating and ascertaining the cause of the fault and provide to TWMP all necessary information relevant to the fault (including but not limited to what your Authorized Users or End Users have done in relation to the fault).

 

Other Services Tools

TWMP may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve your service requests. The Tools will not collect, report or store any of Your Data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the Services. Data collected by the tools (excluding production data) may also be used to assist in managing TWMP’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the Agreement.
If TWMP provides you with access to or use of any tools in connection with the Services, your right to use such tools is governed by the license terms that TWMP specifies for such tools; however, if TWMP does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your Services environment, subject to the terms of this Agreement. Any such tools are provided by TWMP on an “as is” basis and TWMP does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of TWMP’s notice (which may be through posting on the Support Platform or such other URL designated by TWMP), the end of the Services Term, or the date that the license to use such tools ends under the license terms specified for such tools.

 

Your Data

In performing the services, TWMP will comply with the TWMP SERVICES PRIVACY POLICY and/or, if applicable, the TWMP GDPR Data Processing Addendum (DPA), incorporated herein by reference. Both are subject to change at TWMP’s discretion; however, any changes will not result in a material reduction in the level of protection provided for Your Data during the period for which fees for the Services have been paid.
TWMP reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide. TWMP and all our subcontractors maintain commercially reasonable security measures and comply with the GDPR and our Data Processing Addendum (DPA) as applicable.
You agree to provide any notices and obtain any consents related to your use of the Services and TWMP’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of personal information in accordance with applicable privacy and data protection laws. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Your Data. You are the data controller of all personal data of your Insider Portal and TWMP is acting as data processor in the execution of the Services.
You further represent and warrant that:

  • Any and all Data supplied by you or otherwise accessed by TWMP through the provision of the Services is your sole and exclusive property or you have secured any and all authorizations and rights to use the Data, as applicable;
  • Your Data does not breach any relevant laws, regulations or codes;
  • Your Data does not infringe the intellectual property rights of any third party;
  • You will comply with all applicable laws and regulations in the jurisdiction where you access and publish content using our Services; and
  • You grant to TWMP and/or its subcontractors permission to copy, transmit, store and back-up or otherwise access, use or make reference to any intellectual property rights in the Data:
    • To supply the Services including to enable the Merchant and any Authorized Users to access and use the Services;
    • To do analysis for the purposes of predictive safety analytics, industry guideline production and other construction safety-related uses, provided that such data is re-identified;
    • For diagnostic purposes;
    • To test, enhance and otherwise modify the Services whether requested by the Merchant or not;
    • To develop other Services; and
    • As reasonably required for the performance of the SaaS Provider’s obligations under this Agreement.

You acknowledge and agree that:
  • Any collation, conversion and analysis of data performed as part of the Services whether by the Services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of data. TWMP is not liable for any such errors, delays or losses, provided that followed your explicit instructions, omissions. You are responsible for adopting appropriate organizational and technical measures to limit the impact of such loss or error;
  • TWMP may relocate the Your Data to another jurisdiction. Should this happen, TWMP will give you 15 business days’ notice and use all reasonable endeavors to minimize the effect of such change on your access of your Insider Portal and use of the Services;
  • TWMP is not liable for any corruption or loss of any data, if such corruption or loss is due to an act or omission by you, your Personnel, any of your Authorized Users or End-Users; and
  • TWMP is not responsible for the integrity or legal basis of any data in your Environment, network or any device controlled by you and/or your Personnel.

 

Fees and Taxes

You agree to pay for all Services ordered, as set forth in the applicable Ordering Document. All fees due under this Agreement are non-cancelable, and the sums paid non-refundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that TWMP must pay based on the Services you ordered, except for taxes based on TWMP’s income. Fees for services listed in an Ordering Document are exclusive of taxes and expenses. All invoices due hereunder are in EUR (€) and are payable in advance and within 10 days from the invoice date.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the Ordering Document; however, the preceding does not relieve TWMP of its obligation to deliver services that you have ordered per the terms of this Agreement.
If any payment has not been made in a timely manner, TWMP may (at our absolute discretion):

  • Immediately cease providing the Services and recover as a debt due and immediately payable from you our additional costs of doing so; and/or
  • Engage debt collection services and/or commence legal proceedings in relation to any such amounts.

 

Nondisclosure

By virtue of this Agreement, the Parties may have access to information that is confidential to one another (Confidential Information). We each agree to disclose only information that is required for the performance of the obligations under this Agreement. Confidential Information shall be limited to the terms and pricing under this Agreement, Your Data residing in the Services environment, and all information clearly identified as confidential at the time of the disclosure.
A Party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other Party.
TWMP and our third-party suppliers must maintain commercially reasonable security measures to protect all Confidential Information in its possession or control, or in the possession or control of its Personnel, from unauthorized access, use, copying or disclosure.
We each agree to hold each other’s Confidential Information in confidence for a period of three (3) years from the date of disclosure. Also, we each agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. TWMP will protect the confidentiality of Your Data residing in the Services environment in accordance with the TWMP DPA, its security practices as well as the US and/or EU legal framework. Nothing shall prevent either Party from disclosing the terms or pricing under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity, as required by law.
Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of the terms of this chapter. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of the terms of this chapter.

 

Privacy

Each Party and its Personnel agrees to comply with its obligations under all data protection and privacy laws applicable to the processing of personal data under the Agreement, including, where applicable, EU Data Protection Law, and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and this Agreement.
Unless provided by applicable legislation, each Party shall not disclose Personal Data to any governmental, regulatory, supervisory or other public authority, including Data Protection Supervisory Authorities and shall procure that its employees comply with this obligation.
This Agreement supplements and incorporates, to the extent the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) applies to this Agreement, the GDPR Data Processing Addendum (DPA), where according to its provisions we are a Processor under the GDPR.
TWMP will take all reasonable steps to notify the Merchant in writing on either of the following cases: a) any security breach incident in connection with Personal Data is identified; and b) any incident whereby a TWMP employee or any third party engaged by TWMP for carrying out specific Processing activities on behalf of the Merchant breaches in any way the Data Protection Legal Framework.
You must ensure that any collection, disclosure and any of processing, including transfer by you (the Merchant and your Personnel) of personal data in connection with the performance of your obligations under this Agreement complies with the applicable privacy law and the privacy policy of your Insider Portal.
You must take all necessary steps to ensure that the personal information held or accessed by you in connection with this Agreement is protected against misuse, interference and loss, and from unauthorized access, modification and disclosure (Data Breach). Both Parties shall co-operate in case of any actual or suspected Data Breach and will provide information to each other in respect of the Data Breach.
Specifically, the Parties must co-operate regarding legal obligations relating to the personal data, complaints relating to the personal data and the rights of individuals to access, correct, delete the personal data or opt out of receiving any communications from or on behalf of the Merchant.
TWMP will retain Your Data for as long as your services environment is active or as needed to provide you with the Services. Your Data shall be deleted five (5) days after the cessation of those services.
TWMP will retain and use data for as long as necessary in order to: (i) comply with legal obligations (ii) resolve disputes, and (iii) comply with any law to which TWMP is subject. TWMP shall notify the Merchant before the Processing takes place, in cases where the law or good faith requires it.

 

Warranties, Disclaimers and Exclusive Remedies

TWMP warrants that the Services will be performed, in all material respects, in accordance with our services policies. If the Services provided to you for any given month during the Services Term were not performed as warranted, you must provide written notice to TWMP in no later than five (5) business days after the last day of that particular month.
TWMP DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT TWMP WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL BE PERFORMED IN THE MANNER INTENDED BY YOU, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT TWMP DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. TWMP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES OR LOSSES RESULTING FROM SUCH PROBLEMS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, TWMP WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF THE NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO TWMP, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND TWMP’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THIS AGREEMENT.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESSED OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

Indemnification

If a third party makes a claim against either you or TWMP (“Recipient” which may refer to you or TWMP depending upon which Party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or TWMP (“Provider” which may refer to you or TWMP depending on which Party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

  • Notifies the Provider promptly in writing, in not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
  • Gives the Provider sole control of the defense and any settlement negotiations; and
  • Gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or, if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other Party for such Material. If such return materially affects TWMP’s ability to meet its obligations under the relevant order, then TWMP may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient, if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the Services (e.g., a third party Web page accessed via a hyperlink). TWMP will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by TWMP. TWMP will not indemnify you for infringement caused by your actions against any third party, if the services as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe on any third-party’s intellectual property rights. TWMP will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the Effective Date of this Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the Effective Date of this Agreement. This section provides the Parties’ exclusive remedy for any infringement claims or damages.
You agree to indemnify and hold TWMP harmless, against all liabilities and claims arising out of or in connection with: (1) any and all unauthorized use of the Services; (2) Authorized Users’ access or use of the Services; (3) injury to or death of any person caused by any act or omission by or on behalf of the Merchant or your Personnel; and (4) damage to any real or tangible property caused by any act or omission by or on behalf of the Merchant or your Personnel.

 

Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), DATA, OR DATA USE. TWMP’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO TWMP FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST TWMP SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Despite anything to the contrary, to the maximum extent permitted by the law, TWMP will have no liability, and you release and discharge TWMP from all Liability, arising from or in connection with any: (1) failure or delay in providing the Services; (2) breach of this Agreement; or (3) misuse of the Services, where caused or contributed to by any: (1) Force Majeure Event; (2) a fault or defect in any item of your Environment; or (3) act or omission of the Merchant, your Personnel, Authorized Users or End Users.
TWMP uses third-party service providers to host the Services and to send email notifications from your Insider Portal. TWMP will not be liable for any interruption to the Services, unavailability or outage, or any interruption, unavailability or outage of your Insider Portal, caused by any such third-party service provider.
You agree that, to the maximum extent permitted by the law, this Agreement excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Agreement.

 

Term

Pre-Term (i.e. Preparation of your Insider Portal): Your Insider Portal will be ready within thirty (30) days from the Effective Date of this Agreement. You will provide all reasonable assistance, cooperation and required materials to TWMP and pay all your fees in a timely manner in order to enable us to supply the Services within this time frame or sooner.
Commencement: The Term of this Agreement takes effect on the day you are provided with an Insider Portal to access and use the Services but no later than thirty (30) days from the Effective Date or, whichever occurs first, and continues for the Initial Annual Term of one (1) year, and renews automatically for a Renewal Annual Term of one (1) year each time, unless this Agreement is terminated earlier by either Party in accordance with the terms of this Agreement.
Applicable to Initial Term and any Renewal Terms: At least thirty (30) days prior to the expiry of the current Annual Term, either Party may notify the other in writing that it does not wish to renew this Agreement and in such event, this Agreement will expire at the end of the then current Annual Term. If a Party has not given notice pursuant to this clause, this Agreement is automatically renewed for another 12-month period (Renewal Annual Term).

 

End of Agreement

Services provided under this Software as a Service Agreement shall be provided for the Initial Annual Term defined in the Ordering Document and any Renewal Annual Terms thereafter, unless earlier terminated in accordance with this Agreement. The Initial Annual Term and any Renewal Annual Terms are collectively defined as the Services Term. At the end of the Services Term, all rights to access or use the Services listed in the Ordering Document, shall end.
If either Party breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching Party is in default and the non-breaching Party may terminate the applicable Ordering Document under which the breach occurred. If TWMP ends the Ordering Document as specified in the preceding sentence, you must pay within 30 days all due amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the Agreement plus related taxes and expenses. If TWMP ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The non-breaching Party may agree, in its sole discretion, to extend the 30-day period for so long as the breaching Party continues reasonable efforts to cure the breach. You agree that, if you are in default under this Agreement, you may not use the Services.
TWMP may immediately terminate this Agreement: (i) for non-payment, (ii) if you commit any breach of this Agreement not capable of remedy, (iii) you undergo a change of control to a competitor of TWMP as determined by TWMP, (iv) an insolvency event occurs in relation to the Merchant, or (v) your certificate of fitness expired and you failed to acquire a new one.
In addition, TWMP may immediately suspend your passwords, accounts, and access to or use of the Services (including your Insider Portal) without notice: (i) if you fail to pay TWMP as required under this Agreement and do not cure within the first ten days of the 30 day cure period, (ii) if you violate any provision within sections Rights Granted, Ownership and Restrictions, Export, or Restrictions on Use of the Services, of this Software as a Service Agreement or (iv) if you or your Authorized Users are repeat infringers of the intellectual property rights of us or third parties. TWMP may terminate the Services hereunder if any of the foregoing is not cured within 30 days after TWMP’s initial notice thereof. Any suspension by TWMP of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement. A €300 reinstatement charge applies to reactivate the suspended Services once full payment has been received.
At your request, and for a period of up to five (5) days after the termination of the applicable Ordering Document, TWMP may permit you to access the Services solely to the extent necessary for you to retrieve a file of Your Data then in the Services environment. You agree and acknowledge that TWMP has no obligation to retain Your Data and that Your Data may be irretrievably deleted after five (5) working days following the termination of the Ordering Document.
Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.

 

Statistical Information

TWMP may compile statistical information related to the performance of the Services and may make such information publicly available provided that such information does not incorporate Your Data and/or identify your Confidential Information or include your company’s name. TWMP retains all intellectual property rights for such information.

 

Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); and, any other event outside the reasonable control of the obligated Party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel any unperformed services upon written notice. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Services.

 

Merchant Reference

You agree (i) that TWMP may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by TWMP on our websites for promotional purposes.

 

Links to Third Parties

The Services may contain links to third-party web sites or services that are not owned or controlled by TWMP. TWMP has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party web sites or services. The Merchant further acknowledges and agrees that TWMP shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

 

Export

The export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export laws controls govern your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported, directly or indirectly, in violation of these export laws and regulations, or will be used for any purpose prohibited by these export laws and regulations, including without limitation nuclear, chemical, or biological weapons proliferation, or development of missile technology.

 

Entire Agreement

You agree that this Agreement (including the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. It is expressly agreed that the terms of this Agreement, shall supersede the terms in any purchase order or other non-TWMP document and no terms included in any such purchase order or other non-TWMP document shall apply to the services ordered.

 

Modifications to the Agreement

We may modify this Agreement (including any policies) at any time by posting a revised version on this webpage or by otherwise notifying you in accordance with Section Other-4; provided, however, that we will provide you with an at least 90 days’ advance notice in accordance with Section Other-4 for adverse changes to any Service Level Agreement. Subject to the 90-day advance notice requirement with respect to adverse changes to Service Level Agreements, the modified terms will become effective upon posting or as stated in our notice to you. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check this webpage regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the top of this Agreement.

 

Other

1. TWMP is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
2. You shall obtain at your sole expense any rights and consents from third parties necessary for TWMP and its subcontractors to perform the Services under this Agreement.
3. This Agreement is governed by the substantive and procedural laws of Florida.In any dispute arising out of or relating to this Agreement, you and TWMP agree to submit to the exclusive jurisdiction of, and venue in, the courts in Hillsborough County in Florida.
4. If you have a dispute with TWMP or if you wish to provide a notice under the Indemnification section of this Software as a Service Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: TOP WEB MARKETING PLATFORMS LLC, 18529 BITTERN AVE., LUTZ, FL 33558, USA, Attention: Legal Notice. TWMP may give notice applicable to TWMP’s software as a service customer base by means of a general notice on the Insider portal, and notices specific to you by electronic mail to your e-mail address on record in TWMP’s account information or by a ticket in the Support Platform. You will be deemed to have received any such notice sent to you when we send it, whether or not you actually receive or read it.
5. Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing.
6. You may not enter into this Agreement or renew it without a certificate of fitness issued annually by an authorized TWMP partner before the Initial Annual Term or any subsequent Renewal Annual Terms.
7. You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity. If you grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables, and if you decide to finance your acquisition of the Services, you will be responsible for the payment of your fees to us by the financing company you have used.
8. Except for actions for nonpayment or breach of TWMP’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued.
9. TWMP may audit your use of the Services. You agree to cooperate with TWMP’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the Services in excess of your rights. If you do not pay, TWMP can end your Services and/or this Agreement. You agree that TWMP shall not be responsible for any of your costs incurred in cooperating with the audit.
10. The Uniform Computer Information Transactions Act does not apply to this Software as a Service Agreement or orders placed under it. You understand that TWMP’s business partners, including any third-party firms retained by you to provide computer consulting services, are independent of TWMP and are not TWMP’s agents. TWMP is not liable for, nor bound by, any acts of any such business partner, unless the business partner is providing services as an TWMP subcontractor on an engagement ordered under this Software as a Service Agreement.
11. The Merchant will not solicit or entice away any person or organization that was an actual or prospective client, employee, contractor, representative, agent of, or developer to TWMP during the Term of this Agreement.
12. Each Party will appoint and maintain at all times a relationship manager who will be responsible for the management of this Agreement and the Services.