TWIL Subscription Terms & Conditions

The TWIL Subscription Terms and Conditions set forth below (the “Agreement”) constitute a binding agreement between you ("Licensee" or "you") and Mzinga, Inc (“Mzinga”). This Agreement governs your organization’s access and use of Mzinga’s proprietary TWIL mobile application.

BY SIGNING UP TO USE THE APPLICATION AT GETTWIL.COM OR OTHERWISE DOWNLOADING, INSTALLING, OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT SINGN UP FOR, DOWNLOAD, INSTALL OR USE THE APPLICATION.

1. Definitions. Capitalized terms used herein will have the following definitions. Additional terms may be defined in the body of this Agreement.

“Application” means the object code version of Mzinga’s proprietary TWIL mobile application and any updates, upgrades or subsequent versions of such application made available by Mzinga in its sole discretion.

"Authorized User" means an employee, director or officer of Licensee each of whom is designated by Licensee as authorized to use the Application.

"Documentation" means any and all manuals, instructions or other documents or materials that Mzinga provides or makes available to Licensee and that describe the functionality, components, features or requirements of the Application.

"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws.

"Law" means all federal, state and local laws, rules, regulations and orders.

"Licensed Materials" means the Application and Documentation, and any and all copies, reproductions, modifications, enhancements, adaptations, translations and other derivative works thereof.

"Permitted Use" means use of the Licensed Materials solely for the benefit of Licensee and its Authorized Users in connection with enterprise social learning, collaboration and engagement.

“Term” means the Initial Term together with any Renewal Term(s).

"Third-Party Materials" means materials and information, in any form or medium, including any third party software, documents, data, content, specifications, products, equipment or components of or relating to any of the Licensed Materials that is not proprietary to Mzinga.

"Usage Data" means all data, information, materials and other content of any type and in any format, medium or form resulting from any use of the Licensed Materials by Licensee or any Authorized User under or in connection with this Agreement, except that Usage Data does not include any Licensed Materials or any data, information or content that is generated automatically upon executing the Application without additional user input.

2. License.

2.1 License Grant. Subject to and conditioned upon the Licensee's compliance with the terms and conditions of this Agreement, Mzinga hereby grants Licensee a personal, nonexclusive, non-transferable, non-sublicensable license to enable Authorized Users to use the Application and such Licensed Materials as Mzinga may deliver or make available to Licensee solely for the Permitted Use during the Term. Except as expressly authorized in this paragraph, Licensee shall not use, nor permit others to use the Licensed Materials, for any reason.

2.2 Authorized Users. Each Authorized User shall agree to the terms of an End User License Agreement made available by Mzinga prior to downloading and using the Application. Licensee shall be and remain fully responsible and liable for the acts and omissions of Authorized Users and will defend, indemnify and hold Mzinga and its directors, officers and employees harmless from and against any claim, action, cause of action or allegation (and any related loss, cost, damage or expense) made by an Authorized User against Mzinga.

2.3 No Technical Support. Unless otherwise agreed by the parties in writing, Mzinga has no obligation under this Agreement to provide any maintenance, support or other services relating to the Application. Licensee is solely responsible for taking appropriate measures to back up Licensee's systems and data and all other necessary measures to prevent any file or data loss.

3. Use Restrictions.

3.1 Licensee shall not, and shall not permit others to: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Application; (b) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, in whole or in part; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Licensed Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; or (d) access or use any Licensed Materials for purposes of competitive analysis of these materials, the development, provision or use of a competing software product or service, or any other purpose that is to Mzinga's detriment or commercial disadvantage.

4. Proprietary Rights.

4.1 Ownership of Licensed Materials. Subject solely to the express license granted by Mzinga under this Agreement, as between the parties, Mzinga reserves and retains all right, title and interest in and to the Licensed Materials and Mzinga's other Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto. Licensee shall and hereby does, and shall cause each of its Authorized Users to, unconditionally and irrevocably assign to Mzinga, the entire right, title and interest that Licensee or such Authorized User may have or acquire in any Licensed Materials or any of Mzinga's Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto.

4.2 Ownership of Usage Data. Licensee reserves and retains all right, title and interest in and to the Usage Data and Licensee's other Confidential Information, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto. Licensee grants to Mzinga a non-exclusive, perpetual, irrevocable, transferable, sub-licensable, worldwide, royalty-free, fully-paid license to access, retain and make use of Usage Data in connection with Mzinga’s development, provision and improvement of the Application, provided that such Usage Data does not include any personally identifiable information.

4.3 Licensee Input. Licensee hereby grants to Mzinga a royalty-free, fully-paid, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Application any comments, suggestions and other feedback of Licensee or its Authorized Users relating to the operation or functionality of the Application (collectively “Licensee Input”). Mzinga shall have no obligation to use or incorporate into the Application any Licensee Input.

4.4 Rights in Third-Party Materials. The Application may include or operate in conjunction with Third-Party Materials. Ownership of all Intellectual Property Rights in such Third-Party Materials remains with the respective owners thereof, subject to Mzinga's and Licensee's respective rights and licenses under the applicable third-party licenses.

4.5 No Implied Rights. Nothing in this Agreement grants, by implication, waiver, estoppel or otherwise: (a) Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any Confidential Information of Mzinga, except for the limited rights and licenses expressly granted to Licensee pursuant to this Agreement or (b) Mzinga or any third party any Intellectual Property Rights or other right, title or interest in or to any of the Usage Data or Licensee's other Confidential Information, except for the limited rights and licenses expressly granted to Mzinga pursuant to this Agreement.

5. Confidentiality.

5.1 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to Section 5.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, in each case whether or not marked, designated or otherwise identified as "confidential". Without limiting the foregoing, the Licensed Materials are the Confidential Information of Mzinga. The Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) not, unless compelled by Law, disclose or permit access to Confidential Information other than to employees who need to know such information; and (c) safeguard the Confidential Information from unauthorized access, use or disclosure using a reasonable degree of care.

5.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

6. Fees and Payment.

6.1 License Fees. License fees are based on the number of Authorized Users using the Application. In consideration of the rights granted to Licensee under this Agreement, Licensee shall pay to Mzinga the then-current TWIL license fees as set forth at Mzinga’s website gettwil.com or otherwise made available by Mzinga from time to time.

6.2 Additional Fees and Expenses. In consideration of Mzinga providing any installation, training or consulting services under this Agreement, Licensee shall pay to Mzinga the standard Mzinga fees for such services as set forth at Mzinga’s website gettwil.com or otherwise made available by Mzinga from time to time, and shall reimburse Mzinga for out-of-pocket expenses incurred by Mzinga in connection with performing these services.

6.3 Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Mzinga's income.

6.4 Payment. Mzinga will charge Licensee’s payment card for all license fees on a monthly basis in arrears based on the number of Authorized Users accessing or using the Application in the prior month. Licensee shall ensure that Mzinga has current and valid payment card information with sufficient funding to pay all fees due and owning.

6.5 Late Payment. If any payment is rejected and Licensee fails to remit payment within ten (10) days after receiving notice from Mzinga, then, in addition to all other remedies that may be available, Mzinga may disable Licensee's use of the Application until full and satisfactory payment is made.

6.6 No Deductions or Setoffs. All amounts payable to Mzinga under this Agreement shall be paid by Licensee to Mzinga in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

7. Term and Termination.

7.1 Term. This Agreement commences as of the Effective Date and will continue for a period 1 month (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional successive 1 month periods (each a “Renewal Term”), unless either party provides the other party with advance written notice of non-renewal. Upon receipt of notice of non-renewal from Licensee, Mzinga will disable Licensee’s and its Authorized Users’ access to the Application at the end of the calendar month in which it receives notice and will invoice Licensee for such period.

7.2 Termination.

(a) Either party may terminate this Agreement effective upon written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured 30 days after the breaching party receives written notice thereof.

(b) Either party may terminate this Agreement in accordance with Section 10 in the event of a claim that any Licensed Materials or use of any Licensed Materials infringes the rights of a third party.

7.3 Effect of Expiration or Termination. Upon the expiration of the Term or the termination of this Agreement in accordance with this Section 7, Licensee shall immediately discontinue all use of and permanently erase or cause to be erased from its and its Authorized Users' computer systems, files and storage media all copies of the Licensed Materials and any other Confidential Information of Mzinga obtained, made or authorized to be made by Licensee or on Licensee's behalf.

7.4 Surviving Terms. The provisions set forth herein, which by their nature should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.

8. Representations and Warranties; Disclaimer.

8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that:

(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement;

(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and

(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

8.2 Limited Warranty. Mzinga warrants to Licensee that for a period of 30 days from the Effective Date (the "Warranty Period") the Application will substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement.

8.3 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 8.1 AND 8.2, ALL SOFTWARE, SERVICES AND LICENSED MATERIALS ARE PROVIDED "AS IS" AND MZINGA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND MZINGA 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. WITHOUT LIMITING THE FOREGOING, MZINGA MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED MATERIALS WILL MEET LICENSEE'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.

9. Limitations of Liability. IN NO EVENT WILL MZINGA BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MZINGA UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY AND OTHERWISE, EXCEED THE LICENSE FEES PAID BY LICENSEE DURING THE THREE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10. Mitigation. If any Licensed Materials are or in Mzinga's opinion are likely to be claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Licensee's use of any of them is enjoined or threatened to be enjoined, at Mzinga's request, Licensee shall immediately cease all use of such materials. If Mzinga determines that it cannot or should not allow Licensee to continue using the Application because of such claim, either party may terminate this Agreement immediately on written notice to the other party without any resulting obligation or liability to the other party. Licensee shall immediately notify Mzinga if Licensee receives notice or otherwise becomes aware of such claim.

11. Miscellaneous.

11.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

11.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at its published business address. Notices sent in accordance with this 11.2 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

11.3 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

11.4 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Mzinga's prior written consent. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

11.5 Export Regulation. Licensee shall not itself, or permit any third parties to, export, re-export or release, directly or indirectly any Licensed Materials to, or make any Licensed Materials accessible from, any country, jurisdiction or person to whom or which the export, re-export or release, directly or indirectly of any Licensed Materials is prohibited by applicable Law. Licensee shall comply with all applicable Laws relating to, and complete all required undertakings (including, without limitation, obtaining any necessary export license or other governmental approval) prior to, any exporting, re-exporting, releasing or otherwise making available any Licensed Materials.

11.6 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

11.7 Amendment and Modification; Waiver. This Agreement may be amended, modified or supplemented by Mzinga in its sole discretion from time to time. If you continue to use the Application for any Renewal Term, your continued use will be governed by the then-current version of this Agreement and your continued use will constitute assent to any amended, modified or supplemental terms. No waiver by any party of any of the provisions hereof shall be effective unless mutually agreed in writing. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

11.8 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11.9 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts without giving effect to any choice or conflict of law provision. Any legal suit, action or proceeding arising out of this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Massachusetts in each case located in the city of Boston, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.