CyberTwice Subscription Agreement

This CyberTwice Subscription Agreement is between the entity you represent, or, if you do not designate an entity in connection with a Subscription purchase or renewal, you individually (“you”, “your” “Customer”), and CyberTwice B.V. (“CyberTwice”, “we”, “us”, or “our”). It consists of the terms and conditions below, as well as the SLA and the Subscription Details or renewal (together, the “Agreement”). It is effective on the date we provide you with confirmation of your Subscription or the date on which your Subscription is (automatically) renewed, as applicable.

1. Use of Online Services 

1. 1. in a way prohibited by law, regulation, governmental order or decree; 
   2. to violate the rights of others; 
   3. to try to gain unauthorized access to or disrupt any service, device, data, account or network; 
   4. to spam or distribute malware; 
   5. in a way that could harm the CyberTwice Services or impair anyone else’s use of it; 
   6. in any application or situation where the failure of the CyberTwice Service could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage, except in accordance with the High-Risk Use section 1.4; or 
   7. to assist or encourage anyone to do any of the above. 
   8. Violation of the Acceptable Use Policy in this section may result in the suspension of the CyberTwice Service. We will only suspend to the extent reasonably necessary. Unless We believe an immediate suspension is required, We will provide reasonable notice before suspending a CyberTwice Service for the reasons stated above. 
      

1.4 High-Risk Use 
WARNING:   Modern technologies, especially platform technologies, may be used in new and innovative ways, and Customer must consider whether the specific use of these technologies is safe. The CyberTwice Services are not designed or intended to support any use in which a service interruption, defect, error, or another failure of a CyberTwice Service could result in the death or serious bodily injury of any person or in physical or environmental damage (collectively, “High-Risk Use”). Accordingly, Customer must design and implement every application such that, in the event of any interruption, defect, error, or another failure of the CyberTwice Service, the safety of people, property, and the environment are not reduced below a level that is reasonable, appropriate, and legal, whether in general or for a specific industry. Customer’s High-Risk Use of the CyberTwice Services is at its own risk. Customer agrees to defend, indemnify and hold CyberTwice harmless from and against all damages, costs and attorneys' fees in connection with any claims arising from a High-Risk Use associated with the CyberTwice Services, including any claims based in strict liability or that CyberTwice was negligent in designing or providing the CyberTwice Service(s) to Customer. The foregoing indemnification obligation is in addition to any defence obligation set forth in Customer’s licensing agreement and is not subject to any limitation of, or exclusion from, liability contained in such agreements.

1.5 End Users 
You control access by your authorized End Users, and you are responsible for their use of the Product in accordance with this agreement. For example, you will ensure End Users comply with the Acceptable Use Policy (as per 1.2 & 1.3 above).

1.6 Customer Data 
You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the CyberTwice Service to you without violating the rights of any third party or otherwise obligating CyberTwice to you or to any third party. CyberTwice does not and will not assume any obligations with respect to Customer Data or to your use of the Product other than as expressly set forth in this Agreement or as required by applicable law. 

1.7 Responsibility for your accounts 
You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the CyberTwice Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the CyberTwice Services.

1.8 Administrator Assumption of Control 
If you use an email address provided by an organization you are affiliated with (e.g. an employer or school) to order a CyberTwice Service individually, you represent that you have the authority to use that organization’s domain to sign up for a Subscription in your capacity as a member of that organization. The organization, as the owner of the domain associated with your email address, may assume control over and manage your use of the CyberTwice Services. In such a case, your organization’s designated administrator (your “admin”) may (i) control and administer your account, including modifying and terminating your access and (ii) access and process your data, including the contents of your communications and files. CyberTwice may inform you that your organization has assumed control of the CyberTwice Services covered by your Subscription, but CyberTwice is under no obligation to provide such notice. If your organization is administering your use of the CyberTwice Services or managing the tenant associated with your Subscription, direct your data subject requests and privacy inquiries to your administrator. If your organization is not administering your use of the CyberTwice Service or managing such tenants, direct your data subject requests and privacy inquiries to CyberTwice.

1.9 Shared Directory Data
When you order a CyberTwice Service using an email address with a domain provided by an organization you are affiliated with (e.g. an employer or school), the CyberTwice Service adds you to a directory of users that share the same email domain. Your directory data (name, date of signup, and email address) may be visible to other users of CyberTwice Services within your organization’s email domain.

1.10 Additional Software for use with the CyberTwice Services 
To enable optimal access to and use of certain CyberTwice Services, you may install and use certain Software in connection with your use of the CyberTwice Services. We licence the Services to you; we do not sell it. Proof of your Software license is (1) this agreement, (2) any order confirmation, and (3) proof of payment. Your rights to access Software on any device do not give you any right to implement CyberTwice patents or other CyberTwice intellectual property in software or devices that access that device.

2. Use of Software with the CyberTwice Service 

Customer may need to install certain CyberTwice software to use the CyberTwice Service. If so, the following terms apply: 

2.1 CyberTwice Software License Terms 
Customer may install and use the software only for use with the CyberTwice Service. The CyberTwice Service-specific Terms may limit the number of copies of the software Customer may use or the number of devices on which Customer may use it. Customer’s right to use the software begins when the CyberTwice Service is activated and ends when Customer’s right to use the CyberTwice Service ends. Customer must uninstall the software when Customer’s right to use it ends. CyberTwice may disable it at that time.

2.2 Validation, Automatic Updates, and Collection for Software 
CyberTwice may automatically check the version of any of its software. Devices on which the software is installed may periodically provide information to enable CyberTwice to verify that the software is properly licensed. This information includes the software version, the end user’s user account, product ID information, a machine ID, and the internet protocol address of the device. If the software is not properly licensed, its functionality will be affected. Customer may only obtain updates or upgrades for the software from CyberTwice or authorized sources. By using the software, Customer consents to the transmission of the information described in this section. CyberTwice may recommend or download to Customer’s devices updates or supplements to this software, with or without notice. Some CyberTwice Services may require, or may be enhanced by, the installation of local software (e.g., agents, device management applications) (“Apps”). The Apps may collect diagnostic data (as defined in the Product Documentation) about the use and performance of the Apps, which may be transmitted to CyberTwice, to the extent any Personal Data is contained therein, and used for the purposes described in the DPA.

2.3 Third-party Software Components 
The software may contain third-party software components. Unless otherwise disclosed in that software, CyberTwice, not the third party, licenses these components to Customer under CyberTwice’s license terms and notices. 

3. Data Processing and Security.  

The parties agree that these terms govern Customer’s use of the CyberTwice Services and that the CyberTwice DPA sets forth their obligations with respect to the processing and security of Customer Data and Personal Data by the CyberTwice Services. Separate terms, including different privacy and security terms, govern Customer’s use of Non-CyberTwice Products. In the event of any conflict or inconsistency between the DPA and any other terms in Customer’s licensing agreement (including these terms), the DPA shall prevail. 

4. Purchasing services

1. 1. Commitment Offering. You commit in advance to purchase a specific quantity of CyberTwice Services for use during a Term and to pay upfront or on a periodic basis in advance of use. 
   2. Consumption Offering (also called Pay-As-You-Go). You pay based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis in arrears.
   3. Limited Offering. You receive a limited quantity of CyberTwice Services for a limited term without charge (for example, as a trial Subscription or free account) or as part of another CyberTwice offering. Provisions in this Agreement with respect to pricing, cancellation fees, payment, and data retention may not apply.

1. 1. By ordering or renewing a Subscription, you agree to the Subscription Details for that Subscription. Unless otherwise specified in those Subscription Details, CyberTwice Services are offered on an “as available” basis. You may place orders for your Affiliates under this agreement and grant your Affiliates administrative rights to manage the Subscription, but Affiliates may not place orders under this agreement. You also may assign the rights granted under Article 1.1. to a third party for use by that third party in your internal business. If you grant any rights to Affiliates or third parties with respect to Software or your Subscription, such Affiliates or third parties will be bound by this agreement and you agree to be jointly and severally liable for any actions of such Affiliates or third parties related to their use of the Products. 
   2. Some Subscriptions may permit you to modify the quantity of CyberTwice Services ordered during the Term of a Subscription. Additional quantities of CyberTwice Services added to a Subscription will expire at the end of that Subscription. If you decrease the quantity during a Term, we may charge you a cancellation fee for the decrease in quantity as described below in Article 5.2(ii). 

1. 1. For Commitment Offerings, the price level may be based on the quantity of CyberTwice Services you ordered. Some offers may permit you to modify the quantity of CyberTwice Services ordered during the Term and your price level may be adjusted accordingly, but price level changes will not be retroactive. During the Term of your Subscription, prices for CyberTwice Services will not be increased, as to your Subscription, from those posted at the time your Subscription became effective or was renewed, except where prices are identified as temporary in the Subscription Details, or for Non-CyberTwice Products. All prices are subject to change at the beginning of any Subscription renewal.
   2. For Consumption Offerings, pricing is subject to change at any time upon notice.

1. 1. Unless explicitly agreed otherwise all payments required under this agreement shall be made in Euros.  
   2. You shall make all payments without suspension, set-off, or deduction within thirty (30) calendar days of the invoice date unless explicitly agreed to the contrary.  
   3. You may be charged interest, which you shall promptly pay, on all amounts not in dispute and not paid prior to the due date. Interest shall accrue at a rate of 1.5% monthly, beginning on the thirty-first (31st) day after the invoice date and ending on receipt of payment. If the above rate exceeds the maximum amount permitted under applicable law, the maximum amount permitted under applicable law will accrue.
   4. If you dispute any portion of its invoice, you shall pay the undisputed portion of the invoice in full by the due date and submit a written claim fully documenting the reasons the remaining amount is disputed. Upon receipt of such a claim, we will undertake an investigation of the disputed charges. At the conclusion of the investigation, we will notify you of any amount determined by CyberTwice to be correctly charged and such amount will become immediately due and owing. Amounts determined by us to have been correctly charged will be increased with monthly interest, as stated. Unless such a claim is submitted in this manner and received by CyberTwice within ten (10) calendar days of the date the invoice is issued, Customer waives all rights to dispute such charges unless otherwise provided by law. 

4.5 Price Changes  
We may change the price of the CyberTwice Services at any time and if you have a recurring purchase, we will notify you by email, or in another reasonable manner, at least 15 days before the price change. If you do not agree to the price change, you must cancel and stop using the CyberTwice Services before the price change takes effect. If there is a fixed term and price for your CyberTwice Service Subscription, that price will remain in force for the fixed term.

4.6 Payments to You 
If we owe you a payment, then you agree to timely and accurately provide us with any information we need to get that payment to you. You are responsible for any taxes and charges you may incur as a result of this payment to you. You must also comply with any other conditions we place on your right to any payment. If you receive a payment in error, we may reverse or require the return of the payment. You agree to cooperate with us in our efforts to do this. We may reduce the payment to you without notice to adjust for any previous overpayment.

4.7 Renewal

1. 1. Upon renewal of your Subscription, this agreement will terminate, and your Subscription will thereafter be governed by the then current terms and conditions set forth or published (on the CyberTwice website) on the date on which your Subscription is renewed (the “Renewal Terms”). The Renewal Terms will not change during Customer’s subscription for that CyberTwice Service. When CyberTwice introduces features, supplements or related software that are new (i.e., that were not previously included with the subscription), CyberTwice may provide terms or make updates to the terms that apply to Customer’s use of those new features, supplements or related software. If you do not agree to any Renewal Terms, you may decline to renew your Subscription.
   2. For Commitment Offerings, your Subscription will automatically renew. If the existing Term is longer than one calendar month, we will provide you with notice of the automatic renewal before the expiration of the Term.
   3. For Consumption Offerings, your Subscription will renew automatically for additional one-month terms until you terminate the Subscription.
   4. For Limited Offerings, renewal may not be permitted. 

4.8 Taxes
Prices are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. You must pay any applicable value-added goods and services, sales, gross receipts, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this agreement and which we are permitted to collect from you under applicable law. You will be responsible for any applicable stamp taxes and for all other taxes that you are legally obligated to pay including any taxes that arise on the distribution or provision of Products to your Affiliates. We will be responsible for all taxes based on our net income, gross receipts taxes imposed in lieu of taxes on income or profits, or taxes on our property ownership. 

If any taxes are required to be withheld on payments you make to us, you may deduct such taxes from the amount owed to us and pay them to the appropriate taxing authority; provided, however, that you promptly secure and deliver an official receipt for those withholdings and other documents we reasonably request to claim a foreign tax credit or refund. You must ensure that any taxes withheld are minimized to the extent possible under applicable law.

4.9 Electronic Notices 
CyberTwice may provide Customer with information and notices about CyberTwice Services electronically, including via email, through the portal for the CyberTwice Service, or through a website that CyberTwice identifies. Notice is given as of the date it is made available by CyberTwice. 

5. Term, termination, and suspension

5.1 Agreement term and termination
This agreement will remain in effect until the expiration, termination, or renewal of your Subscription, whichever is earliest.

5.2 Subscription termination
You may terminate a Subscription at any time during its Term; however, you must pay all amounts due and owing before the termination is effective.

1. 1. One-Month Subscription. A Subscription having a one-month Term may be terminated at any time without any cancellation fee.
   2. Subscriptions of more than one month. A Subscription having a Term of more than one month will automatically renew the day after the Subscription Term expires unless Customer chooses not to renew by opting out of auto-renewal at least 30 days before the current Term expires. If you terminate a Subscription to CyberTwice Services at any other time during the Term, you must pay for the remainder of the Term, and no refunds will be provided.
   3. Limited Offerings. CyberTwice may terminate your Subscription to a Limited Offering at any time during the Term immediately without notice.
   4. Other Subscriptions. For all other Subscriptions, if you terminate a Subscription before the end of the Term, you must pay a fee equal to one month’s Subscription fee and you will receive a refund of any portion of the Subscription fee you have paid for the remainder of the Term; provided, however, no refunds will be provided for partially unused months. 

1. 1. For Limited Offerings, we may suspend your use of the CyberTwice Services, your Subscription, and your account immediately without notice.
   2. For all other Subscriptions, a suspension will apply to the minimum necessary part of the CyberTwice Services and will be in effect only while the condition or need exists. We will give notice before we suspend, except where we reasonably believe we need to suspend immediately. We will give at least 30 days' notice before suspending for non-payment. If you do not fully address the reasons for the suspension within 60 days after we suspend, we may terminate your Subscription and delete your Customer Data without any retention period. We may also terminate your Subscription if your use of the CyberTwice Service is suspended more than twice in any 12-month period.

6. Non-CyberTwice Products

CyberTwice may make Non-CyberTwice Products available to Customer through Customer’s use of the CyberTwice Services. If Customer installs or uses any Non-CyberTwice Product with a CyberTwice Service, Customer may not do so in any way that would subject CyberTwice’s intellectual property or technology to obligations beyond those expressly included in Customer’s licensing agreement. For Customer’s convenience, CyberTwice may include charges for certain Non-CyberTwice Products as part of Customer’s bill for CyberTwice Services. CyberTwice, however, assumes no responsibility or liability whatsoever for any Non-CyberTwice Product. Customer is solely responsible for any Non-CyberTwice Product that it installs or uses with a CyberTwice Service. Customer’s use of any Non-CyberTwice Product shall be governed by the license, service, and/or privacy terms between Customer and the publisher of the Non-CyberTwice Product (if any). 

7. Changes to and Availability of the CyberTwice Services 

CyberTwice may make commercially reasonable changes to each CyberTwice Service from time to time. CyberTwice may modify or terminate a CyberTwice Service in any country where CyberTwice is subject to a government regulation, obligation or other requirements that (1) is not generally applicable to businesses operating there, (2) presents a hardship for CyberTwice to continue operating the CyberTwice Service without modification, and/or (3) causes CyberTwice to believe these terms or the CyberTwice Service may conflict with any such requirement or obligation. If CyberTwice terminates a CyberTwice Service for regulatory reasons, Customers will receive a credit for any amount paid in advance for the period after termination. 

8. Warranties

1. 1. CyberTwice Services. We warrant that the CyberTwice Service will meet the terms of the SLA during the Term. Your only remedies for breach of this warranty are those in the SLA.
   2. Software. We warrant for one year from the date you first use the Software that it will perform substantially as described in the applicable user documentation. If Software fails to meet this warranty we will, at our option and as your exclusive remedy, either (1) return the price paid for the Software or (2) repair or replace the Software. 

1. 1. any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last one year from the start of the limited warranty;
   2. this limited warranty does not cover problems caused by accident, abuse or use of the Products in a manner inconsistent with this agreement or our published documentation or guidance, or resulting from events beyond our reasonable control;
   3. this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and
   4. this limited warranty does not apply to Limited Offerings. 

9. INTELLECTUAL PROPERTY RIGHTS  

All title and ownership rights in and to the CyberTwice Service and related documentation made available for use by you pursuant to this agreement shall remain fully with CyberTwice. You understand and agree that CyberTwice Service and related documentation is proprietary information and a trade secret of CyberTwice whether or not any portion thereof is or may be validly copyrighted or patented. You acknowledge and accept that CyberTwice has exclusive rights, title and interest in and to the CyberTwice Services and Software and related documentation. All applicable rights to patents, copyrights, trademarks and trade secrets in the CyberTwice Services, Software and related documentation and modifications thereto made at Customer’s request (“Customer Solution” are and shall remain in CyberTwice. You agree that you at any time will not do or cause to be done any act or thing impairing or tending to impair any part of such rights, title and interest. You agree that use of the CyberTwice Service or Software and related documentation shall not create in your favour any right, title or interest in the CyberTwice Service or Software and related documentation except as expressly provided herein. 

CyberTwice remains free to provide similar services to other customers provided it does not violate the terms hereof. While providing the CyberTwice Service, we may develop inventions, technologies, methods, techniques, trade secrets, know-how and other intellectual property concerning, without limitation, the provision of remote computer services, information technology services, telecommunications, data networks and data centre management (collectively IP). Except as provided herein, ownership of all intellectual property rights and all other rights, titles, and interests in all IP shall automatically vest in and remain the exclusive property of CyberTwice. 

10. Defense of claims 

1. 1. We will defend you against any claims made by an unaffiliated third party that a Product infringes that third party’s patent, copyright, or trademark or makes unlawful use of its trade secret. 
   2. You will defend us against any claims made by an unaffiliated third party that (1) any Customer Solution, Customer Data, or Non-CyberTwice Products or services you provide, directly or indirectly, in using a Product infringes the third party’s patent copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from the violation of the Acceptable Use Policy. 

10.2 Limitations
Our obligations in Article 10(i) will not apply to a claim or award based on: (i) any Customer Solution, Customer Data, or Non-CyberTwice Products, modifications you make to the Product, or services or materials you provide or make available as part of using the Product; (ii) your combination of the Product with, or damages based upon the value of Customer Solution, Customer Data, or Non-CyberTwice Products, data, or business process; (iii) your use of a CyberTwice trademark without our express written consent, or your use of the Product after we notify you to stop due to a third-party claim; (iv) your redistribution of the Product to, or use for the benefit of, any unaffiliated third party; or (v) Products provided free of charge.

10.3 Remedies
If we reasonably believe that a claim under Article 10(i) may bar your use of the Product, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop the use of the prior version of the Product. If these options are not commercially reasonable, we may terminate your rights to use the Product and then refund any advance payments for unused Subscription rights.

10.4 Obligations 
Each party must notify the other promptly of a claim under this Article. The party seeking protection must (i) give the other sole control over the defence and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties respective rights to defence and payment of judgments (or settlement the other consents to) under this Article 10 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights. 

11. Limitation of liability  

11.1 Limitation 
The aggregate liability of each party for all claims under this Agreement is limited to direct damages up to the amount paid under this Agreement for the CyberTwice Service during the 12 months before the cause of action arose; provided that in no event will a party’s aggregate liability for any CyberTwice Service exceed the amount paid for that CyberTwice Service during the Subscription.

11.2 EXCLUSION
Neither party will be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew they were possible or reasonably foreseeable.

11.3 Exceptions to limitations 
The limits of liability in this Article apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under Article 10; or (2) violation of the other's intellectual property rights. 

12. Miscellaneous

12.1 Notices 
Notices must be in writing and will be treated as delivered on the date received at the address, the date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to CyberTwice must be sent to the following address:
     CyberTwice B.V.
     Legal Administration
     Hazenkoog 25 
     1822 BS Alkmaar
     The Netherlands
Notices to you will be sent to the address that you identify on your account as your contact for notices. CyberTwice may send notices and other information to you by email or other electronic forms. 

12.2 License Transfers and Assignment 
You may not assign this Agreement either in whole or in part or transfer licenses without CyberTwice’s consent. 

12.3 Severability 
If any part of this Agreement is held unenforceable, the rest remains in full force and effect.

12.4 Waiver 
Failure to enforce any provision of this Agreement will not constitute a waiver.

12.5 No agency 
This Agreement does not create an agency, partnership, or joint venture.

12.6 No third-party beneficiaries 
There are no third-party beneficiaries to this Agreement.

12.7 Applicable law and venue 
This agreement is governed by Dutch law, without regard to its conflict of laws principles. Any action to enforce this Agreement must be brought in the court of Noord-Holland, location Alkmaar (the Netherlands). This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights.

12.8 Entire agreement 
This Agreement is the entire Agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between any documents in this agreement that is not expressly resolved in those documents, their terms will control in the following order of descending priority: (1) this CyberTwice Subscription Agreement, (2) the CyberTwice Services Terms, (3) the applicable Subscription Details, and (4) any other documents in this Agreement.

12.9 Survival 
The terms in Articles 1, 4.3, 8, 10, 11, 12, 13 and 9  will survive termination or expiration of this Agreement.

12.10 Force majeure 
Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labour disputes, acts of civil or military authority, war, terrorism (including cyber-terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Online Services)). This article will not, however, apply to your payment obligations under this Agreement.

12.11 Contracting authority 
If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this Agreement. 

13. Definitions 

Any reference in this Agreement to “day” will be a calendar day.