Terms & Conditions
Intwine Online Terms and Conditions
THESE TERMS AND CONDITIONS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AND INTWINE’S, IN CONNECTION WITH YOUR USE OF INTWINE’S SERVICES. PLEASE READ THEM CAREFULLY.
This Agreement is entered into between you as our customer ("you", "your", "Company") and Intwine Connect LLC ("Intwine", "we", "our") and includes the any applicable Scope of Work. Conditions. By accepting this Agreement, you agree to comply with its terms and the specific terms of the service plan you selected (including the plan's duration and applicable early termination fee). Your acceptance of this Agreement occurs by and upon the earliest of: (a) submission of your order; (b) your acceptance of the Agreement electronically or in the course of installing the Hardware; (c) your use of the Service; or (d) your retention of the Hardware we provide beyond thirty (30) days following delivery.
Intwine reserves the right to amend or modify these Terms and Conditions at any time, which shall become effective immediately. You are responsible for reviewing these Terms and Conditions, as well as staying apprised of any changes.
With respect to any inconsistencies between these Terms and Conditions and the Scope of Work, the Scope of Work shall govern.
1. Interpretation
1.1 The definitions and rules of interpretation in this clause 1 apply through this Agreement.
Agreement: means these Terms and Conditions, the Scope of Work, and any other terms and conditions applicable to the Services provided.
Assets: any Hardware, Software or Intellectual Property Rights used by Intwine for the delivery of the Managed Services to the Customer.
Business Day: a day, other than a Saturday, Sunday or public holiday in the United States when banks in New York, NY, are open for business.
Confidential Information: all information (however recorded or preserved) disclosed by a party or its employees, consultants, officers, representatives, advisers, agents or sub-contractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other party or that party's Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.
Designated Representative: has the meaning given in clause 19.2.
Dispute: has the meaning given in clause 19.
Dispute Notice: has the meaning given in clause 19.1.
Dispute Resolution Procedure: the procedure described in clause 19.
Effective Date: the date of in which the Scope of Work has been signed by both parties.
Extended Term: has the meaning given in clause 12.1.
Fees: the fees payable to Intwine, as described in the applicable Scope of Work.
Force Majeure Event: means an event which is beyond the reasonable control of the party seeking to rely on such event, including:
Hardware: all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by Intwine (or any of its sub-contractors) to deliver any of the Services to the Customer.
Incident: any Virus or security incident which:
Initial Term: a period defined by the quote provided by Intwine Connect following the Effective Date (i.e. 24 months, month-to-month, etc.)
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of and rights to claim priority from such rights, and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maintenance: any error corrections, updates and upgrades that Intwine may provide or perform with respect to the Managed Services, as well as any other support or training services to be provided to the Customer under this Agreement.
Maintenance Events: has the meaning given in clause 3.3.
Managed Services: the service described in the Managed Services Scope of Work to be performed by Intwine in accordance with this Agreement.
Normal Business Hours: means Monday through Friday, from the hours of 8:00 a.m. and 6:00 p.m.
Permitted Purpose: has the meaning given in clause 10.2.
Representatives: means any person acting on behalf of or is authorized to act on behalf of a party to this Agreement, including such parties employees, officers, contractors, subcontractors, or advisors.
Scope of Work: means the applicable Scope of Work between Intwine and Customer.
Setup Services: the due diligence, configuration and related work referred to in clause 3, to be performed by Intwine to set up the Managed Services.
Service Level Arrangements: means the arrangement outlined in clause 3.
Services: the Setup Services, the Managed Services, the Maintenance, and the Transition Services.
Software: any software used by Intwine (or any of its sub-contractors) to provide the Managed Services to the Customer whether owned by a third party (being ), by the Customer (being >span class="DefTerm">Customer Software) or by Intwine (being Intwine Software).
Uptime Service Level: has the meaning given in clause 3.4.
Virus: includes any malicious code, Trojan, worm and virus, lock, authorization key or similar device that impairs or could impair the operation of the Software or the Managed Services.
Work Product: all deliverables and all other reports, documents, materials, techniques, ideas, concepts, trademarks, know-how, algorithms, software, computer code, routines or sub-routines, specifications, plans, notes, drawings, designs, pictures, images, text, audiovisual works, inventions, data, information and other items, expressions, works of authorship or work product of any kind that are authored, produced, created, conceived, collected, developed, discovered or made by Intwine (or any of its sub-contractors) in connection with the Services or which relate in any manner to the Services or which result from any work performed by Intwine (or any of its sub-contractors) for the Customer, including any and all Intellectual Property Rights therein.
2. Service Requirements and Due Diligence
2.1 Throughout the term of this Agreement, Intwine shall be responsible for specifying to the Customer all information reasonably required by Intwine for the purposes of recommending, advising, establishing, setting-up and providing the Services and Intwine shall do so in sufficient detail to enable the Customer to supply all such information to Intwine, so far as it is available to the Customer. Intwine shall review all such information supplied by the Customer to Intwine promptly on receipt and shall promptly following receipt notify the Customer of any further information reasonably required by Intwine.
2.2 Customer acknowledges that the successful implementation of and continued function of the Services is dependent upon complete and accurate information from Customer. Customer shall provide accurate information to Intwine, whether upon request or as necessary for successful performance for the Services, as soon as practicably possible. Customer further acknowledges and agrees that Intwine is not liable to Customer for any required maintenance, failures, down-time, Incidents, or errors in the Services that arise because: (i) Customer provides incorrect information to Intwine; (ii) Customer fails to provide all information to Intwine; (iii) Customer fails to notify Intwine of the issue; or (iv) Customer alters or fails to follow the instructions or guidelines provided by Intwine.
3. Service Level Arrangements
3.1 Intwine shall provide the Managed Services from the Effective Date until expiration or termination of this Agreement. These Service Level Arrangements shall apply with effect from the start of the first complete calendar month commencing after the Acceptance Date.
3.2 Intwine shall work with Customer to provide the Setup Services, as appliable.
3.3 Maintenance work that may require interruption of the Managed Services (“Maintenance Events”) shall not normally be performed during Normal Business Hours. Intwine may interrupt the Managed Services during Normal Business Hours for maintenance provided that notice is given the Customer at least twenty-four (24) hour advanced written notice.
3.4 Intwine shall provide at least a 99.9% uptime service availability level contingent upon the absence of any catastrophic or unavoidable disruption in service by Intwine’s upstream providers (“Uptime Service Level”). For the avoidance of doubt, the Managed Services shall not be considered as “unavailable” during Maintenance Events, Customer-caused outages or disruptions, or outages or disruptions attributable in whole or in part to Force Majeure Events.
3.6 Intwine reserves the right, in its absolute discretion, to:
(a) modify Intwine's System, its network, system configurations or routing configuration; or
(b) modify or replace any Hardware or Software in its network or in equipment used to deliver any Service over its network, provided and to the extent that this has no adverse effect on Intwine's ability to perform its obligations under this Agreement and its provision of the Services or the Service Level Arrangements.
4. Intwine's Representations
4.1 Intwine represents that the Services will be performed with all reasonable skill and care and this Agreement that the Managed Services will be provided substantially in accordance with the Scope of Work. This representation shall not apply to the extent of any non-conformance that is caused by use of the Managed Services contrary to Intwine's instructions, including as set out in this Agreement.
4.2 This Agreement shall not prevent Intwine from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services that are similar to those provided under this Agreement.
5. Security
5.1 Intwine shall ensure that appropriate safety and security systems, policies and procedures are maintained and enforced to prevent unauthorized access or damage to, and to ensure the business continuity of, any and all Services and related networks or resources, in accordance with industry standards, including an incident management process which shall enable Intwine, as a minimum, to discover and assess Incidents, and to prioritize those Incidents. Despite all attempts, Intwine cannot guarantee there will be no Incidents.
5.2 The Customer shall promptly inform Intwine if it suspects or uncovers any Incident and shall use all commercially reasonable efforts to promptly mitigate such Incident.
6. Customer's Obligations
6.1 The Customer shall:
(a) provide Intwine with:
(i) all necessary cooperation in relation to this Agreement; and
(ii) all necessary access to such information as may be reasonably required by Intwine, in order to provide the Services, security access information, and (subject to providing any confidentiality undertakings reasonably required by the Customer) software interfaces to the Customer's other business applications;
(b) provide such personnel assistance, including the Customer personnel, as may be reasonably requested by Intwine from time to time; and
(c) carry out all other Customer responsibilities and obligations set out in this Agreement in a timely and efficient manner.
6.2 In the event Customer fails to meet the obligation outlined in clause 6.1, Intwine shall be entitled to an equitable adjustment to the date or dates in any time schedule and, if Intwine incurs additional costs to avoid or mitigate the effects of Customer’s failure or delay in providing such assistance or performance of its responsibilities and obligations, Intwine shall be entitled to make an equitable adjustment to the Fees (or a combination of the two as appropriate).
7. Warranties
7.1 The Customer warrants and represents that:
(a) it has the full capacity and authority to enter and perform this Agreement and that this Agreement is executed by a duly authorized representative of the Customer;
(b) it has the authority to grant any rights to be granted to Intwine under this Agreement, including the right to provide the Software and Hardware to Intwine as indicated in this Agreement and for the same to be used in the provision of the Services and otherwise in connection with this Agreement;
(c) it owns or has obtained valid licenses, consents, permissions, and rights to use and where necessary to license to Intwine, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement, including any third-party licenses and consents in respect of any Customer Software; and
(d) the Customer operating environment and all of its components are up to date, in good working order, and are subject to ongoing industry-standard support and maintenance services.
7.2 Intwine’s limited warranty and warranty disclaimer.
(a) For a period of one (1) year from the Effective Date, Intwine warrants that the Hardware will substantially conform to the Managed Service specifications. Except for the foregoing, the Software and Hardware are provided AS IS. In no event does Intwine warrants that the Software or Hardware are error free, that they will operate with any software or hardware other than the Managed Services provided by Intwine.
(b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN CLAUSE 7.2(a), THE SERVICES ARE PROVIDED UNDER THIS AGREEMENT "AS IS" AND INTWINE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN CLAUSE 7.2(a), INTWINE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
(c) For the avoidance of doubt, the disclaimer in clause 7.2(b) includes any third-party products used by Intwine in the Services. Intwine makes no representations or warranties with respect to third-party products and strictly disclaims third-party products the same.
8. Charges and Payment
8.1 The Customer shall pay Fees for the Setup Services Fees and the monthly Fees for the Managed Services, in accordance with the Scope of Work.
8.2 Verizon Wireless shall bill the Customer on behalf of Intwine for Services performed by Intwine pursuant to the “Billing on Behalf of Program” with Verizon Wireless. Customer agrees that it will not “block” Intwine’s services from its Verizon Wireless prior to termination of this Agreement.
8.3 If for any reason Customer is no longer billed through Verizon Wireless, Customer shall become directly liable to Intwine for the Fees.
8.4 If the Customer fails to make any payment due to Intwine under this Agreement more than ten (10) days after the due date for payment, then, without limiting Intwine's remedies under this Agreement, the Customer shall pay interest on the overdue amount at the rate of 18% per annum or the highest rate permissible by law, whichever is less. Such interest shall accrue daily from the due date until actual payment of the overdue amount, whether before or after judgment.
9. Proprietary Rights
9.1 The Customer acknowledges and agrees that, as between the parties, Intwine and/or its licensors own all Intellectual Property Rights in the Work Product and in all other materials connected with the provision of the Services and/or developed or produced in connection with this Agreement by Intwine, its officers, employees, sub-contractors or agents. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to such Intellectual Property Rights.
9.2 Intwine grants to the Customer a perpetual (for the term of this Agreement and thereafter), revocable, non-transferable, non-exclusive, royalty-free, worldwide license to use Intwine's Intellectual Property Rights solely to the extent and as incorporated by Intwine into the Work Product solely in connection with the Customer's use of the Work Product in accordance with this Agreement.
9.3 Each party reserves all rights not expressly granted or transferred in or pursuant to this Agreement.
10. Confidentiality
10.1 Each of the parties recognizes that while negotiating and/or performing this Agreement it may receive Confidential Information belonging or relating to the other party.
10.2 Each party shall keep the other party's Confidential Information confidential and shall not: (a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement (“Permitted Purpose”); or (b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its Representatives in violation of the terms of this Agreement.
10.4 The Customer acknowledges and agrees that Intwine's Confidential Information includes any designs, plans, software, or other materials created by Intwine in connection with the Services and agrees not to use such designs, plans, software or other materials for any purpose other than receipt of the Services.
10.5 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that: (a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and (b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause 10.
10.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including any relevant securities exchange) or by a court, arbitral or administrative tribunal or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.6, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.7 The provisions of this clause does not apply to Confidential Information that: (a) is or becomes generally freely available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause 10); (b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party; (c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; (d) was known to the receiving party before the information was disclosed to it by the disclosing party; (e) the parties agree in writing is not confidential or may be disclosed; or (f) is developed by or for the receiving party independently of the information disclosed by the disclosing party.
10.8 The provisions of this clause 10 shall continue to apply after expiration or termination of this Agreement for any reason.
11. Limitation of Liability
11.1 Except as expressly provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. Intwine shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Intwine by the Customer in connection with the Services, or any actions taken by Intwine at the Customer's direction; and
(b) all warranties, conditions and other terms implied by statute, common law or otherwise are, to the fullest extent permitted by law, excluded from this Agreement.
11.3 Intwine's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the price paid for the Services during the six (6) months preceding the date on which the claim arose.
11.4 This clause 11 sets out the entire financial liability of Intwine (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of this Agreement;
(b) any use made by the Customer of the Services;
(c) any tort, including products liability; and
(d) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
11.5 The Service Level Arrangements state the Customer's sole and exclusive right and remedy, and Intwine's only obligation and liability, in respect of the performance and availability of the Managed Services, or their non-performance and non-availability.
12. Term and Termination
12.1 This agreement shall commence on the Effective Date. Unless terminated earlier in accordance with this clause 12, this Agreement shall continue in force for the Initial Term and shall automatically extend for successive one (1) month periods (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term.
12.2 Notwithstanding the foregoing clause 12.1, Customer shall receive a thirty (30) day period following receipt of the Hardware to validate the Managed Services conform with this Agreement. If Customer is not satisfied with the Managed Services as provided in the first thirty (30) days following receipt of the Hardware, Customer may cancel this Agreement. Following termination under this clause 12.2, Customer shall immediately return the Hardware. Failure to return the Hardware within thirty (30) days will result in additional charges.
12.3 Without prejudice to any other right or remedy available to it, and subject to this Agreement, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the terminating party provides thirty (30) days written notice to the other party;
(b) the other party fails to pay any amount due under this Agreement on the due date for payment and fails to cure such default within fifteen (15) days of being notified to make such payment;
(c) the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so; or
(d) such party files a petition in bankruptcy or has filed against it an involuntary petition in bankruptcy that is not dismissed within sixty (60) calendar days after filing, or applies for or consents to the appointment of a receiver, custodian, trustee or liquidator (or such an appointment is otherwise made with respect to such party or any significant portion of its assets), or makes a general assignment for the benefit of creditors.
12.4 The party not affected by a continuing Force Majeure Event may terminate this Agreement in accordance with clause 13.1.
12.5 On expiration or termination of this Agreement for any reason:
(a) Intwine shall immediately cease providing the Services; and
(b) Each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party.
12.6 Upon termination of this Agreement or termination of any aspect of the Managed Services, all unpaid charges will become due immediately (except to the extent such termination is the result of a default by Intwine, in which case all such charges shall be cancelled), and as compensation for termination, Customer shall pay to Intwine: (I) 100% of the monthly reoccurring charges for the remaining number of months under the Initial Term; (ii) any and all outstanding funds due to Intwine at the time of termination, including, but not limited to, rendered services, hardware, and installation fees; plus (iii) any additional fees outlined in the Scope of Work. Failure to return any Hardware at Intwine’s request may result in additional fees.
12.7 Expiration or termination of this Agreement for any reason shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at expiration or termination.
13. Force Majeure
13.1 Neither party shall have any liability to the other under this Agreement if it is prevented from, or delayed in, performing its obligations under this Agreement, arising from any Force Majeure Event, provided that:
(a) the other party is notified of such an event and its expected duration; and
(b) it uses all reasonable efforts to mitigate, overcome or minimize the effects of the Force Majeure Event concerned, and that if the period of delay or non-performance continues for thirty (30) days or more, the party not affected may terminate this Agreement by giving not less than thirty (30) days' written notice to the other party.
14. Waiver
14.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15. Severance
15.1 If any provision or part-provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
15.2 If any provision or part-provision of this Agreement is deemed deleted under clause 15.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16. Entire Agreement
16.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.
16.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17. Assignment
17.1 Intwine may at any time assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under this Agreement without the consent of the Customer, provided however Intwine shall provide Customer advanced written notice of such Assignment.
17.2 The Customer shall not, without the prior written consent of Intwine, assign, transfer, mortgage, charge, sub-contract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under this Agreement.
18. No Partnership or Agency
18.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, or constitute any agency by one party on behalf of the other party nor authorize any party to make or enter into any commitments for or on behalf of any other party.
18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
19. Dispute Resolution
19.1 If a dispute arises under or in connection with this Agreement (“Dispute”), including any Dispute arising out of any amount due to a party, then before bringing any legal proceedings or commencing any other alternative dispute resolution procedure in connection with such Dispute, a party must first give written notice (“Dispute Notice”) of the Dispute to the other party describing the Dispute and requesting that it is resolved under the dispute resolution procedure described in this clause 19.
19.2 If the parties are unable to resolve the Dispute within thirty (30) days of delivery of the Dispute Notice, each party shall promptly (and in any event within five Business Days):
(a) appoint a representative who has authority to settle the Dispute and is at a higher management level than the person with direct responsibility for the administration of this Agreement (“Designated Representative”); and
(b) notify the other party of the name and contact information of its Designated Representative.
19.3 Acting reasonably and in good faith the Designated Representatives shall discuss and negotiate to resolve the Dispute, including agreeing the format and frequency for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one party to the other party shall be complied with as soon as reasonably practicable).
19.4 If the parties are unable to resolve the Dispute within thirty (30) days after the appointment of both Designated Representatives, either party may proceed with any other available remedy.
19.5 Notwithstanding any other provision of this Agreement, a party may seek interim or other equitable relief necessary (including an injunction) where damages would be an inadequate remedy.
20. Governing Law and Jurisdiction
20.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the State of Ohio, without giving effect to any provision regarding the conflict of laws.
20.2 Each party irrevocably agrees that the state or federal courts of located in the State of Ohio, Cuyahoga County, shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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