Last updated: Mar 06, 2023
In consideration of the mutual covenants and agreements herein contained, and in return for good and valuable consideration, the receipt and adequacy of which is hereby specifically acknowledged, the Parties hereby agree as follows:
Capitalised terms used in this Agreement shall have the meanings set forth in this Section 1 or as otherwise defined elsewhere in this Agreement.
1.1. “Affiliate” means with respect to a party, any entity that, directly or indirectly, through one or more intermediaries, Controls or is Controlled by, or is under common Control with such party.
1.2. “Authorised User” means an active employee designated by Customer to use the Services with respect to which a valid Subscription is purchased pursuant to an Order Form.
1.3. “Confidential Information” means all proprietary information of a Party or which is held by such Party under a confidentiality undertaking, in any form, whether of a technological or commercial nature, and including without limitation, formulations, data, technology, know how, designs, inventions, discoveries, processes and models, technology, and any sales, financial, contractual and marketing information and any information of a confidential nature concerning either Party’s products or services. Confidential Information shall include information related to the Services and any information relating thereto.
1.4. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the majority ownership of voting securities, election of a majority of directors, acting as or having the power to appoint a general partner of a partnership or manager of a limited liability company, by contract, or otherwise.
1.5. “Customer Data” means any data relating to Customer provided or made available to Twist or any Twist Affiliate under this Agreement or any Order Form, and shall include all data generated pursuant to this Agreement by Twist to the extent it relates to Customer or arises from the performance of the Services.
1.6. “Digital Products” means any Subscriptions or Services sold or enabled through Twist’s platform.
1.7. “Documentation” with respect to the Service, means any documentation provided in connection with the Service, including specifications, paperwork, diagnostic, user, training, and other information related to the use of the Service.
1.8. “Intellectual Property Rights” means all intellectual property and proprietary rights anywhere in the world, whether statutory, common law, or otherwise, including, without limitation, patents (including patent applications and disclosures), copyrights, trademarks and service marks (whether registered or unregistered), logos and devices, trade secrets, know-how, moral rights, or database rights, and all goodwill relating to the foregoing.
1.9. “Order Form” means a mutually executed document or online registration form, that specifies the Service to be provided to Customer. Each Order Form will be made a part of and will be governed by this Agreement.
1.10. “Service” means the software as a service solution provided by Twist under this Agreement as described in the applicable Order Form.
1.11. “Specifications” means the operational and technical description applicable to the Service as set forth in the applicable Order Form.
1.12. “Subscription” means a non-exclusive, cancelable sublicense granted by Customer to an Authorised User to access and use the Service for such Authorised User’s internal or personal use and not for redistribution, and otherwise in accordance with the terms of this Agreement.
2. THE SERVICES
2.1. Services. Twist will provide Customer the Services as set forth in each Order Form entered into by the Parties from time to time. All such Services will conform, in all material respects, to the applicable Specifications.
2.2. Updates. As a part of Twist’s maintenance of the Services, from time to time Twist may develop, implement, and maintain updates, enhancements, improvements, fixes or solutions to problems or bugs in the Service (which, for the avoidance of doubt, do not include new features or functionality) (“Updates”). To the extent made generally available by Twist to its Customers, Twist will incorporate such Updates and provide Customer with any necessary Documentation related to such Updates. Any Updates by Twist will not degrade the capabilities, or features of the Service, unless otherwise agreed between the Parties.
2.3. Service Level Agreement. Twist will provide and operate the Service in accordance with the Service Level Agreement (“SLA”).
For avoidance of doubt, the Fees shall be applicable and paid without regard to the means in which such Fees are to be paid (e.g., whether the transaction is conducted through the Digital Products, an external credit card or via a bank wire transfer).
3.1. Grant of License. Twist hereby grants to Customer, during the term of this Agreement, a nonexclusive, fully-paid, non transferable, non-assignable right and licence to (a) access and use the Service for the purposes contemplated herein or in an applicable Order Form; (b) perform testing and evaluation of the Service, (c) use internally and reproduce the Documentation provided by Twist solely to the extent necessary for the use of the Services, and (d) grant Subscriptions to Authorised Users subject to the limitations on the number Subscriptions set forth in the applicable Order Form, which may include generating login credentials for each such Authorised User.
3.2. Licence Restrictions. Other than as permitted under this Agreement, Customer will not and will ensure that its Authorised Users do not: (a) use the Service in any manner or for any purpose other than as expressly permitted by this Agreement or the Documentation; (b) use the Service in violation of any applicable law; (c) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted in to Customer hereunder to any third party; (d) modify, alter, tamper with, repair or otherwise create derivative works of any software included in or used to provide the Service; (e) reverse engineer, disassemble or decompile the Service or any software contained therein, or attempt to discover or recreate the source code to any Service or software included therein; (f) remove, obscure or alter any proprietary rights notices related to the Service or any portion thereof; or (g) access or use the Service in a way intended to avoid incurring fees or exceeding Subscriptions, usage limits or quotas set forth in any applicable Order Form.
3.3. Licence by Customer. Customer hereby grants Twist, during the term of this Agreement, a non-exclusive, worldwide, royalty-free, fully paid up licence to use any Customer Data solely to the extent necessary for Twist to provide the Services.
4. OWNERSHIP/INTELLECTUAL PROPERTY RIGHTS
4.1. Ownership. All right, title, and interest in all of the Services, Documentation, Updates, any software contained therein, any derivative work made thereto and Twist’s Confidential Information of Twist, including without limitation, any customizations, modifications, updates, upgrades made thereto by any party, will be owned exclusively by Twist.
4.2. Ownership and Use of Customer Data. Except as expressly provided in this Agreement, Customer has and will retain exclusive ownership and control over all Customer Data. Notwithstanding the foregoing, Twist may use the Customer Data in an aggregated anonymized form to further develop Twist’s products and services.
4.3. Limited Rights. Customer’s rights in the Service will be limited to those expressly granted in this Agreement. Except as expressly granted in this Agreement, neither Party will have any other rights of any kind in the other’s intellectual property, Intellectual Property Rights, proprietary technology, websites, products, or other proprietary materials. Each party reserves all rights not expressly granted to the other under this Agreement.
5. PAYMENT; TAXES
5.1. Licence and Services Fees. In consideration for the licences and Services provided hereunder, Customer will pay Twist the fees as set forth in each Order Form at the times set forth in the Order Form, within 30 days of Twist’s invoice unless otherwise set forth in such Order Form. Any amounts due and not paid by Customer within 15 days of the date on which they are due will be charged default interest at a rate of 1% per month, or the maximum rate permitted by applicable law.
5.2. Taxes. The fees and charges under this Agreement do not include any sales, use, excise, transaction or other similar taxes levied against or upon the licensing of Service or the furnishing or receipt of Services pursuant to this Agreement. If such taxes are applicable, they will be separately stated on the invoice to Customer, and Customer will pay them. Customer will have no obligation to pay any taxes or fees that are (a) based upon Twist’s net or gross income or gross receipts; (b) franchise taxes or other taxes based on Twist’s corporate existence or status; or (c) personal property taxes. If applicable law requires Customer to withhold (or deduct at source) any taxes levied on payments to be made to Twist pursuant to this Agreement, the prices listed in the Order Form will be adjusted upwards to compensate Twist for such withholding or deduction.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1. Twist represents, warrants and covenants that as of the Effective Date:
6.1.1. The Services will be performed in conformance, in all material respects, with this Agreement, any applicable Order Form, and the applicable Specifications;
6.1.2. Twist is authorised and able to perform the Services hereunder in a good and workmanlike manner;
6.1.3. There are no judgments, orders, injunctions, decrees, awards, or settlements outstanding against Twist or by which Twist is bound which adversely affect the provision of the Services contemplated by this Agreement;
6.1.4. The Services are free from any malicious code, trojan horses, malware, viruses or other computer code designed to: (i) corrupt data; (ii) self- replicate; (iii) surreptitiously monitor and/or report activity; or (iv) damage the performance of any computer memory or file system at any time and for any purpose.
6.2. Limitations of Warranty. Without limiting any other provisions limiting liability under this Agreement, Twist shall not be liable under any warranty provided herein in the event that the Services, including any Update: (i) has been subject to misuse, negligence, accident or improper use or maintenance by anyone other than Twist, or; (ii) has been modified, repaired or altered by anyone other than Twist, without Twist’s express prior written approval, or (iii) in the event customizations, adaptation, and/or modifications thereto have been developed by anyone other than Twist, without Twist’s express prior written consent; or (iv) has been damaged by causes beyond the control of Twist.
6.3. NO IMPLIED WARRANTIES. TWIST’S EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF AND TO THE EXCLUSION OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY TERMS AS TO THE CONDITION, QUALITY, PERFORMANCE OR FITNESS FOR PURPOSE OF THE SERVICES OR UPDATES OR ANY PART THEREOF.
6.4. Representations and Warranties of the Parties. Each Party represents, warrants and covenants that: (a) it has the full corporate right, power, and authority to enter into this Agreement and perform the obligations and duties hereunder; (b) the execution of this Agreement, and the performance of the obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each in accordance with its terms.
7.1. Indemnification. Twist will indemnify Customer, its officers, directors and employees, and undertakes to defend same against and hold same harmless from any claims, actions, suits, loss, damages, expenses and costs (including, but not limited to, reasonable attorneys’ fees) arising out of or relating to any claim of infringement of a third party’s Intellectual Property Rights arising from use of the Services, any Update or Documentation; or intentional misconduct of Twist, or its officers, directors or employees. Twist will promptly notify Customer in the event that Twist becomes aware of any actual, threatened or potential claim of the type described in this Section 7.1.
7.2. Procedures and Settlements. If any claim is commenced against a person or entity entitled to indemnification under this Section (the “Indemnified Customer Party”), notice thereof will be given to Twist as promptly as practicable, provided that any delay in providing such notification will not relieve Twist of its obligations except to the extent prejudiced by such delay. Twist may, if it so elects, in a notice promptly delivered to the Indemnified Customer Party, to immediately take control of and assume the defence and investigation of such claim and to employ and engage attorneys reasonably to handle and defend the same, at Twist’s sole cost and expense. The Indemnified Customer Party will cooperate, at Twist’s expense, in all respects with Twist and its attorneys in the investigation and defence of such claim and any appeal arising therefrom; provided, however, that the Indemnified Customer Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation and defence of such claim and any appeal arising therefrom. If any settlement requires an affirmative obligation of, results in any ongoing liability to, or materially prejudices the rights of, the Indemnified Customer Party hereunder, then such settlement will require the Indemnified Customer Party’s prior written consent (not to be unreasonably withheld or delayed).
7.3. Infringement Injunctions. If Customer’s use of any of the Services, the Documentation or any Update hereunder is, or in Twist’s opinion is likely to be, enjoined as an infringement or misappropriation of any third party Intellectual Property Right, Twist will, at Twist’s option and expense, and at no cost or expense to Customer, either: (a) procure for Customer the right to continue to use the Services, Documentation and/or Update under the terms of this Agreement; or (b) replace or modify the Services, Documentation and/or Update so that they are non-infringing and substantially equivalent in function to the enjoined Services, Documentation and/or Update.
7.4. Exclusions. Twist’s obligations set forth in this Section 7 shall not apply to the extent the claim of infringement of Intellectual Property Rights arises as a result of: (i) modifications to the Services, Documentation and/or Update made by any person or entity except Twist or anyone on its behalf where such, without such modifications, would not have infringed third party’s rights; and/or (ii) the use of the Services and/or Updates not in compliance with the Documentation and Specifications thereof; and/or (iii) combination, utilisation or integration of the Services, Documentation and/or Updates with Customer’s or with third parties’ equipment, network, platform, products and/or applications, where the Services, Documentation and/or Updates, standing alone, would not have infringed third party’s rights; and/or (iv) from the use of the Services, Documentation and/or Update in a manner for which it was not intended.
The Parties acknowledge and contemplate the exchange of Confidential Information during and in connection with the performance of this Agreement. The following provisions shall apply to such Confidential Information:
8.1. Non-disclosure of Confidential Information. Each Party (for the purposes of this Section 8 the “Receiving Party”) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of this Agreement any Confidential Information received from the other Party (for the purposes of this Section 8 the “Disclosing Party”) in whatever form under or in connection with this Agreement without the prior written permission of the Disclosing Party. Each Party shall limit access to Confidential Information to those of its personnel for whom such access is reasonably necessary for the proper performance of this Agreement. Such personnel shall be bound by confidentiality obligations not less restrictive than those provided for in this Agreement. The Receiving Party shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorised disclosure or use of Confidential Information, as the Receiving Party exercises in protecting its own proprietary information of a similar nature.
8.2. Restrictions. Confidential Information shall not be deemed to include information which: (a) was in the possession of the Receiving Party prior to disclosure hereunder provided that immediately upon disclosure, Receiving Party brought this fact to the attention of the Disclosing Party; or (b) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or (c) was disclosed by a third party without breach of any obligation of confidentiality; or (d) is disclosed pursuant to administrative or judicial action, provided that the Receiving Party shall use its best efforts to maintain the confidentiality of the Confidential Information (e.g. by asserting in such action any applicable privileges, and shall, immediately after gaining knowledge or receiving notice of such action, notify the Disclosing Party thereof and give the Disclosing Party the opportunity to seek any other legal remedies so as to maintain such Confidential Information in confidence), and provided further that only that portion of the Confidential Information which is specifically required by such administrative or judicial action is provided. Recipient shall have the burden of proof of establishing these exceptions. If only a portion of the Confidential Information falls under any of the above subsections, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of this Agreement.
8.3. Equitable Relief. In recognition of the unique and proprietary nature of the information disclosed by each Party, it is agreed that each Party’s remedy at law for breach by the other party of its obligations under this Section 8 may be inadequate and the Disclosing Party will, in the event of such breach or threatened breach, be entitled to seek equitable relief, including without limitation, injunctive relief and specific performance, in addition to any other remedies provided hereunder or available at law.
8.4. Binding Term. The provisions of this Section 8 shall bind the Parties for an indefinite period of time and shall survive any termination or expiration of this Agreement.
9. PRIVACY AND DATA SECURITY
9.1. The Parties agree that each Party will act as a controller with respect to contact details and similar types of personal data disclosed between the parties under the Agreement for business purposes. Each Party shall be independently responsible to comply with its obligations as a controller under applicable data protection legislation in connection with the processing of such personal data under the Agreement.
9.2. Each Party shall provide to the other Party, as reasonably requested, information, co- operation and assistance as each Party may, from time to time, require to enable the other Party to comply with its obligations under applicable data protection legislation as a controller with respect to the processing of personal data under the Agreement, only to the extent the other Party is reasonably able to do so, taking into account the information it has in its possession and control.
9.3. Notwithstanding the foregoing, Twist may use personal data in an aggregated manner, provided that such data is anonymized, for the purpose of further developing Twist’s Digital Products and Services.
10. LIMITATION OF LIABILITY
10.1. In no event will either Party be liable towards the other under any legal theory (including, without limitation, tort or contract) for any incidental, consequential, indirect, punitive or exemplary damages of any kind, including but not limited to lost profits or loss of goodwill, arising out of or in connection with this Agreement, even if such Party has been advised of the possibility of such damages.
10.2. Except with respect to (i) willful misconduct, (ii) breach of any payment obligation hereunder, (iii) breach of any confidentiality obligations, or (iv) breach of obligations pursuant to Sections 9 (Privacy and Data Security) and 8 (Indemnification) (the liabilities in this subsection (iv) “Specific Liabilities”), each Party’s liability under or pursuant to this agreement shall be limited to the amounts paid by Customer to Twist pursuant to the applicable Order Form for the subscription term in which the event giving rise to such liability occurs.
10.3. Without derogating from the foregoing, with respect to any Specific Liability, Twist’s total aggregate liability hereunder shall not exceed US$100,000 in the aggregate.
10.4. The foregoing limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between Twist and Customer.
11.1. Term. This Agreement will commence on the Effective Date and will remain in effect for a period of one year (as extended by any Renewal Term (as defined below, the “Term”). Thereafter, this Agreement will automatically renew for one (1) year terms (each a “Renewal Term”), unless (i) Customer, or (ii) following completion of two (2) renewal terms, either party, gives written notice of its intent to not renew this Agreement at least thirty (30) days prior to expiration of the initial term or any Renewal Term, as applicable.
11.2. Termination for Cause. Either Party may terminate this Agreement and/or any Order Form in effect at the time by written notice, in the event of any of the following: (a) a material breach by the other party of this Agreement and/or any Order Form which is not cured within 30 days of notice thereof; (b) the other Party ceases to carry on its business as an ongoing concern; (c) the institution of bankruptcy, receivership, insolvency, reorganisation or other similar proceedings by or against the other Party, if such proceedings have not been dismissed or discharged within sixty (60) calendar days after they are instituted; (d) the appointment of a receiver for all or substantially all of the other Party’s assets, if such appointment is not dismissed or discharged within sixty (60) calendar days (e) a Force Majeure Event.
11.4. Survival. The rights and obligations of the parties contained in Sections 4 (Ownership/Intellectual Property Rights), 7 (Indemnification) with respect to events occurring prior to termination, 8 (Confidentiality), 10 (Limitation of Liability), 11.4 (Survival), and 12 (General) will survive the termination of this Agreement. Additionally, any provision that expressly states that it will survive or which, by its nature, must survive the completion, expiration, termination, or cancellation of this Agreement, will survive the completion, expiration, termination, or cancellation of this Agreement.
12.1. Assignment. Customer may not assign this Agreement, in whole or in part, without the other Party’s prior written consent, provided however, that Customer may assign its rights or obligations hereunder to an Affiliate to the foregoing, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns. Notwithstanding the foregoing, Customer hereby acknowledges that Twist uses certain subcontractors for the purpose of providing the Services hereunder and may use alternate or additional subcontractors in the provision of the Services.
12.2. Final provisions. If one of the provisions in this Agreement is invalid in whole or in part, this shall not affect the validity of the remaining provisions. In place of the invalid provision, a valid provision shall be deemed to have been agreed which comes as close as possible to the economic purpose intended by the Parties. The place of jurisdiction for all disputes arising directly or indirectly from the Agreement is at Twist’s registered office in London. However, Twist is also entitled to bring an action at the place of performance of the Service according to the Agreement or at the general place of jurisdiction of Client.
12.3. Waiver. The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
12.4. Notices. Any notice shall be deemed given by mail, certified, return receipt requested, personal delivery, electronic mail or by courier to the below addresses, or to such other addresses as may be provided by one party to the other. Notice by mail shall be deemed delivered five (5) days after the date it was mailed. Personal delivery shall be deemed to occur upon delivery to the receiving party or his/her/its office. Notice by courier shall be deemed delivered upon delivery by the courier. Notice by electronic mail will be deemed delivered upon transmission thereof, provided that no “delivery failure” notice is received.
If to Customer:
Details as provided under the Order Form
If to Twist:
Twist Solutions Ltd.
Attn: Will Godfrey, CEO
12.5. Relationship of Parties. Twist is an independent contractor and nothing herein will be construed to the contrary. Neither Party will assume or create any obligations or responsibilities expressed or implied, on behalf of or in the name of the other Party, or bind the other Party in any manner or thing whatsoever without such Party’s prior written consent. Twist will use Twist’s own tools and instruments in providing the Services. Except for those resources that Customer expressly agrees to provide in an Order Form, Twist will provide all personnel, software and other resources as may be necessary to perform the Services in accordance with this Agreement. Twist will be solely responsible for the direction and control of Twist’s employees, representatives and subcontractors, including decisions regarding hiring, firing, supervision, assignment and the setting of wages and working conditions. Customer will neither have nor exercise disciplinary control or authority over Twist or Twist’s employees, representatives or subcontractors. No agent, employee, representative or subcontractor of Twist will be or be deemed to be the employee, agent, representative or subcontractor of Customer. None of the employer-paid benefits provided by Customer to its own employees, including but not limited to workers’ compensation insurance and unemployment insurance, are available from Customer to Twist or to Twist’s employees, agents, representatives or subcontractors.
12.6. Headings. The captions and headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
12.7. Use of Names/Publicity. Twist will not use Customer’s name, logo, service marks, domain names, symbols or any other Customer name or mark without Customer’s prior written consent, other than in providing the Services to Customer under this Agreement, provided that Twist may use Customer’s name and logo to indicate that Customer is a customer of Twist on its website, in Customer and investor presentations, and press releases. The parties will cooperate to create any and all appropriate public, promotional announcements or press releases relating to the relationship set forth in this Agreement. Neither party will make any public announcement regarding the existence or content of this Agreement without the other party’s prior written approval and consent.
12.8. Written Instrument. This Agreement or an Order Form may not be supplemented, amended or modified at any time until the parties execute a written instrument that (a) must be in a mutually agreed upon written or electronic format, and (b) must be signed by an authorised representative of each Party.
12.9. Modifications. Twist reserves the right, at its discretion, to change the terms of this Agreement at any time. Such change will be effective 10 days following Twist sending a notice thereof to Customer or posting the revised Agreement on Twist’s website or platform, and Customer’s continued use of the Service thereafter means that Customer has accepted those changes.
12.10. Entire Agreement. This Agreement, including all addenda, Schedules, Exhibits, Order Forms and attachments attached hereto, and other documents referred to in this Agreement and any documents referenced herein and therein, are hereby incorporated in and made a part of this Agreement and contain the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorised representatives of the Parties.