Invoicing terms and conditions

Description of Services

1. These Terms apply to all Services provided by Supplier: Twintag, Professional Services and Support.

Twintag is a cloud platform which allows Customer to create digital experiences for its products and services. Those Customer specific digital experiences require an Application which runs on top of Twintag. Supplier can develop an Application at Customer’s request as part of Professional Services. 

The technical and functional specifications of Twintag are described in the Documentation, while the deliverables for the Professional Services are described in the Order.

2. Twintag must be continuously updated to correct errors and keep it up to date with technological advances. Supplier may therefore modify Twintag - e.g. by adding new functions, deleting existing ones or changing usage conditions - as well as the Support. Supplier will inform Customer of such modifications via Twintag’s admin panel, email or another type of message. 

In case the modifications are material to Customer, Customer may terminate the Services which are impacted by that modification free of charge. Such termination must occur at the latest 60 days after Customer was notified of the modifications by Supplier. No refund or other damages can be requested for such termination. 

License

Supplier grants Customer - and its affiliates - a nonexclusive, worldwide licence to use Twintag for the time period specified in the Order, subject to Customer respecting all conditions in these Terms and the Order.

Customer may not redistribute or sub-license Twintag to third parties.

Tiers

1. Twintag and Support are offered in a tier structure. This tier structure offers a sliding level of usage conditions (for Twintag) and assistance (for Support). Customer can consult its usage of Twintag in Twintag’s admin section.

The tier structure is defined in the Order. Customer confirms the tier it requires in the Order. 

2. Subject to the usage conditions of the tier selected by Customer, Customer may i.a. activate new twintags and retire existing twintags.  

Customer will be informed of consumption and possible upgrade. In case the usage conditions for the selected tier are exceeded, Customer is automatically upgraded to the higher tier. 

Customer may also downgrade usage conditions to a lower tier, such a downgrade will become effective as of the next renewal pursuant to article 8.1.

Customer data

1. Customer owns all intellectual property in Customer Data. 

Supplier may only use Customer Data to provide services to Customer, as required by applicable law  or as explicitly allowed under this Agreement. 

2. Customer Data may not infringe third party intellectual property rights and/or violate applicable laws and regulations. 

Customer agrees that Twintag shouldn’t be used as master storage of Customer Data and will ensure that all Customer Data is stored or backed up in a different system. 

Price and payment

1. Applicable prices are listed in the Order.  

Unless otherwise agreed, Professional Services are provided on a time and material basis. 

2. All prices are exclusive of any taxes or duties. Customer agrees to pay or reimburse Supplier for any applicable taxes or duties, such as sales taxes, value added taxes and any other fee that is imposed by a government authority on Customer’s use of, license to or receipt of Services. 

Prices are subject to annual indexation pursuant to the (Belgian) Agoria index for reference wages.

3. Invoices must be paid within 30 days of receipt by Customer. Unless otherwise agreed, prices for Services are invoiced in advance.

Warranties and indemnities

1. Supplier warrants that: 

🔹 Twintag materially conforms to the Documentation 
🔹 Support materially complies with the tier selected by Customer

This article 6.1 is an obligation of means. 

Customer’s exclusive remedies for a breach of this article 6.1 (warranties) are: 

🔹 Supplier must correct or work around errors in Twintag and Support as soon as reasonably possible, and 
🔹 if corrections or workarounds aren’t possible, Customer may terminate all twintags impacted by an error pursuant to article 9.2 (termination). 

2. Supplier doesn’t warrant that Twintag will be uninterrupted, error free or can always be accessed.

Twintag is a platform consisting of various tools and systems which are configured by or under the responsibility of Customer to work with an Application or third party application. Supplier doesn’t warrant the proper configuration with Twintag.

Professional Services are provided per Customer’s specifications only. Supplier has no responsibility to correct or complete Customer’s specifications. 

3. Supplier must indemnify and defend, at its expense, any action brought against Customer when it is based on a claim: 

🔹 that Twintag infringes any copyright, trade secret, patent or trademark which is valid or registered in the United States, Japan, South Korea or a member of the European Patent Organization
🔹 made by a supplier of Supplier

Customer must indemnify and defend, at its expense, any action brought against Customer when it is based on a claim:

🔹 related to Customer Data
🔹 made by a third party using an Application

The indemnifying Party must pay all damages finally awarded against the indemnified Party by a court of competent jurisdiction or agreed in a settlement, provided that indemnified Party gives the indemnifying Party (i) prompt written notice of the claim, (ii) all requested information and reasonable assistance related to the claim, and (iii) sole authority to defend or settle the claim. 

The indemnifying Party may not admit liability or incur obligations on the indemnified Party’s behalf without the indemnified Party prior written consent, which shall not be unreasonably withheld.

Supplier has no liability and no obligation to indemnify when the infringement of a third party intellectual property or trade secret is caused by: 

🔹 a combination or integration of the Services with any component not supplied by Supplier 
🔹 a modification of the Services by anyone other than Supplier.

Intellectual Property

1. All intellectual property developed by a Party prior to or independently of these Terms remains the property of that Party.

2. Supplier will transfer intellectual Property which is: 

🔹 developed or created exclusively for Customer in the framework of Professional Services, and
🔹 described and explicitly mentioned for transfer in a SOW.

3. Supplier may use Analytics Data to provide and improve its services. Supplier owns all intellectual property resulting from its use of Analytics Data.

If Customer provides feedback in the course of using or evaluating Twintag - such as suggestions for change - Supplier may freely use such feedback and Customer transfers all intellectual property in such feedback to Twintag. Supplier owns all intellectual property resulting from Supplier’s use of such feedback.

Liability

1. A Party’s aggregate liability under these Terms can never be higher than the average amount paid by Customer for Twintag over a 12 month period.

The limitation in article 8.1 doesn’t apply in case of:

🔹 breaches of article 6.3 (IP indemnity) and 10 (confidentiality)
🔹 Customer’s failure to pay any price which is due death or personal injury 
🔹 fraud or wilful misconduct. 

2. Indirect damages such as loss of profit, turnover, clients, business interruption, anticipated savings, reputation and data, as well as any loss or penalty due to business interruption, won’t be compensated.

Term and termination

1. Unless if agreed differently in the Order, the term for Twintag and Support is 12 months. 

Twintag and Support will be automatically renewed for subsequent 12 months (or the period provided in the Order), unless a Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Twintag or Support cannot be renewed more than 3 times.

These Terms remain in force as long as all twintags or Support haven’t been terminated or expired. The termination or expiration of these Terms will not affect any provisions which by their nature survive termination or expiration, such as payment, confidentiality, term and termination, intellectual property, warranties and indemnities, limitation of liability, and the general provisions. 

2. Support and twintags can be terminated in case of: 

🔹 a material breach which remains uncured for 30 days after receiving notice of the intent to terminate
🔹 a Party’s insolvency or a similar event

Termination only affects the twintags or Support affected by the material breach. 

In case of termination for uncured material breach by Supplier, Supplier will provide Customer a pro-rata refund of all prepaid but unused twintags or Support. No refund will be given for the period before termination.

3. Customer Data will be available for export until 30 days after termination of a twintag. After these 30 days, Customer Data stored in these twintags will be permanently deleted.

Confidentiality

1. Confidential Information:

🔹 may only be disclosed to those employees, contractors or affiliates of the receiving Party on a need-to-know basis
🔹 may only be used by the receiving Party to perform its obligations under these Terms and 
🔹 must be sufficiently protected by the receiving Party to prevent unauthorised use or disclosure.

The receiving party will ensure that all its recipients of Confidential Information are bound by obligations at least as restrictive as those in this clause 10. 

2. The obligations in clause 10.1 don’t apply to Confidential Information: 

🔹 which is part of the public domain
🔹 which was in the receiving Party’s possession prior to it being exchanged by the other Party
🔹 which is disclosed without restrictions to receiving Party by a third party
🔹 which didn’t breach any confidentiality obligation in doing so
🔹 which is developed by the receiving Party without using the other Party’s Confidential Information
🔹 for uses explicitly allowed pursuant to these Terms.

3. This clause 10 will survive the termination of these Terms for 5 years. 

At the expiration or termination of these Terms, each Party will return to the other Party or destroy all materials containing or reflecting any of the other Party’s Confidential Information. 

Data protection and security

1. When the Service is used to process personal data, Customer acts as the controller and Supplier as the processor pursuant to the General Data Protection Regulation 2016/679. 

All rights and obligations of the Parties regarding the processing of personal data are detailed in the Data Processing Annexe.

2. Supplier must for the entire Term implement industry standard security measures to protect Customer Data. At Customer’s request, Supplier will provide a short description of the general measures that have been implemented. Supplier will participate to Customer’s security questionnaires at a cost to be agreed between the Parties.

General

1. These Terms represent the complete and entire understanding between the Parties regarding its scope and supersede all prior negotiations, representations or agreements.

2. Supplier is an independent contractor of Customer. The Parties’ relationship does not constitute a partnership, joint venture or agency.

3. A Party may assign its rights and obligations under these Terms to a third party which is financially stable, has the necessary technical expertise and isn’t a competitor of the other Party. The assigning Party must inform the other Party at least 30 days prior to the assignment. 

4. If a provision of these Terms is invalid or unenforceable, the remaining provisions remain unaffected. The Parties will substitute for the invalid or unenforceable provision with a provision that conforms as much as possible to the original intent of the Parties. 

5. Failure by a Party to enforce a provision of these Terms may not be considered as a waiver of this provision.

6. Supplier may use Customer’s name, logos, or any other identifier to promote its services to third parties. In doing so, Supplier must use Customer’s trade marks per Customer’s guidelines and respect article 10 (confidentiality).

7. The courts of Antwerp have exclusive jurisdiction over any dispute regarding these Terms. These Terms are governed by Belgian law.

Definitions

Analytics Data means information, statistics, and metrics regarding usage, operation, support and maintenance of the Services. 

Confidential Information means all information exchanged between the Parties. 

Customer means the entity agreeing to the Terms and identified as such in the Order. Customer includes all of Customer’s affiliates.

Customer Data means all files and data uploaded to Twintag by the Customer or a user of an Application.

Documentation means written technical and functional documentation about Twintag published by Supplier.

Order means the form, statement of work or other written document detailing the Services procured by Customer. 

Party or Parties means any one or the combination of Customer and/or Supplier.

Professional Services means any consulting, development, implementation, training or any type of assistance provided to Customer as set out in an Order. 

Services means any or the combination of Twintag, Support and Professional Services.

Supplier means the entity Twintag NV and all its affiliates.

Support means the technical assistance provided by Supplier pursuant to the Support level selected by Customer in the Order.

Terms means the combination of these terms & conditions, an Order and a Support Contract.

Twintag means a cloud platform which enables the creation of digital experiences for its products and services (www.twintag.com). 

twintag means a unique identifier and the associated digital twin/storage space within Twintag of Customer’s product or service.