Healthy Together Customer Agreement
Effective: January 28th, 2021
TWENTY LABS, LLC (“TWENTY”, “WE”, “OUR”, OR “US”) IS WILLING TO PROVIDE YOU (“CUSTOMER” OR “YOU”) WITH ACCESS TO THE SERVICES (DEFINED BELOW) OFFERED HEREUNDER, ONLY ON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL OF THE TERMS SET FORTH IN THIS CUSTOMER AGREEMENT (THE “AGREEMENT”). THIS AGREEMENT ESTABLISHES THE TERMS AND CONDITIONS THAT APPLY TO YOU WHEN YOU USE THE SERVICES. BY CLICKING “I ACCEPT”, YOU INDICATE YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THIS AGREEMENT, AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. YOU ARE NOT PERMITTED TO USE THE SERVICES IF YOU DO NOT AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO ALL THE TERMS SET FORTH IN THIS AGREEMENT.
THIS AGREEMENT CAN BE CHANGED, MODIFIED, SUPPLEMENTED, AND/OR UPDATED BY US AT ANY TIME; PROVIDED THAT WE WILL ENDEAVOR TO PROVIDE YOU WITH PRIOR NOTICE OF ANY MATERIAL CHANGES. YOUR CONTINUED USE OF THE SERVICE AFTER THE MODIFICATION OF THIS AGREEMENT MEANS THAT YOU ACCEPT ALL SUCH CHANGES. ACCORDINGLY, YOU ARE ADVISED TO CONSULT THIS AGREEMENT EACH TIME YOU ACCESS THE SERVICE IN ORDER TO VIEW ANY CHANGES TO THIS AGREEMENT.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Platform.
1.2. “Application” means Twenty’s Healthy Together Free mobile application.
1.3. “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Platform pursuant to Customer’s rights under this Agreement.
1.4. “Customer Information” means data and information provided or submitted by Customer for use with the Services. For the avoidance of doubt, Customer Information does not include any End User Data.
1.5. “Documentation” means guides, information, policies, and other documentation related to the Services that are provided or made available by Twenty to Customer (including electronically).
1.6. “End User” means an individual user of the Application who has agreed to participate in connection with the Services provided to Customer, via an opt-in link (“Customer Link”).
1.7. “End User Data” means any information, which may include personally identifiable information, submitted by, or collected from, an End User in connection with such End User’s use of the Application.
1.8. “Platform” means the Twenty software-as-a-service software, platform, and application that allows Authorized Users to access certain features and functions through a web interface, together with any relevant user instructions or related user documentation.
1.9. “Professional Services” means professional services provided by Twenty to Customer as described in a separate agreement.
1.10. “Reports” means results, reports, materials, and documentation made available to Customer as part of the Services, including through the Platform.
1.11. “Services” means any services provided by Twenty to Customer under this Agreement, including, but not limited to, provision of the Platform.
1.12. “Territory(ies)” means the State of Oklahoma, unless otherwise expressly authorized by Twenty.
1.13. “Twenty Materials” means the Services, Platform, Application, and Reports, and all worldwide intellectual property rights in each of the foregoing, but excluding Customer Information.
2.1. Services. Subject to the terms and conditions of this Agreement, Twenty will provide Customer with the Services as described in the Statement of Work entered into with the Oklahoma State Department of Health as of February 2, 2021. Twenty will provide to Customer the Access Protocols to allow Customer and its Authorized Users to access the Platform in accordance with the Access Protocols. Customer is responsible for keeping all Access Protocols issued to Customer and its Authorized Users confidential and secure and will prevent unauthorized access to, or use of, the Platform. Customer will notify Twenty promptly of any such unauthorized use. Customer shall be responsible for all uses of the Twenty Materials by any Authorized Users or other parties using the Access Protocols issued to Customer, whether or not directed by Customer as if such use was made by Customer. Twenty acknowledges and agrees that pursuant to the Oklahoma Governmental Tort Claims Act, Customer cannot be held liable for any negligent acts or omissions of Authorized Users who are not also employees of the State of Oklahoma.
2.2. Application Access. Subject to the terms and conditions of this Agreement, the Services hereunder shall include access to the Application during the Term via the Customer Link for authorized End Users (e.g. students and employees of Customer) in the Territory. For the avoidance of doubt, Customer shall not directly or indirectly allow (or permit any third party to directly or indirectly allow) any third party who is not associated with Customer to access the Application using the Customer Link.
2.3 License Grant. Subject to the terms and conditions of this Agreement, Twenty grants to Customer a non-exclusive, non-transferable, non-sub-licensable license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations herein and in the applicable Documentation, (a) to access and use the Platform (and permit its Authorized Users to access and use the Platform) in accordance with this Agreement and the Documentation; (b) to promote the Application and distribute links to the Application, in each case solely to potential End Users within the Territory during the Term; and (c) to use the Reports.
3. INTELLECTUAL PROPERTY; PROPRIETARY RIGHTS.
3.1. Customer Information. The Customer Information is the exclusive property of Customer and its suppliers. All rights in and to the Customer Information not expressly granted to Twenty in this Agreement are reserved by Customer and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Twenty regarding the Customer Information or any part thereof.
3.2. Twenty Materials. The Twenty Materials are the exclusive property of Twenty and its suppliers. All rights in and to the Twenty Materials not expressly granted to Customer in this Agreement are reserved by Twenty and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Twenty Materials, or any part thereof.
3.3. Data. Without limiting any of Twenty’s other rights, Twenty may share End User Data, and any other data, information, or content collected, stored, maintained, or processed hereunder (a) as required by applicable law, rule, regulation, or government order; or (b) as otherwise agreed to by the applicable parties. For the avoidance of doubt, Twenty shall have no obligation to provide Customer with any information from or related to any users who are not End Users subject to this Agreement.
3.4. Service Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Twenty Materials except as expressly allowed herein; (b) modify, adapt, alter or translate the Twenty Materials; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Twenty Materials for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Twenty Materials except as permitted by law; (e) interfere in any manner with the operation of the Twenty Materials, or the hardware and network used to operate the Twenty Materials; (f) modify, copy or make derivative works based on any part of the Twenty Materials; (g) access or use the Twenty Materials to build a similar or competitive product or service; (h) attempt to access the Twenty Materials through any unapproved interface; (i) require any End Users to enter into agreements regarding the Twenty Materials that conflict with the terms herein or with any of Twenty’s terms of services for the Twenty Materials; or (j) otherwise use the Twenty Materials in any manner that exceeds the scope of use expressly permitted in this Agreement or in a manner inconsistent with applicable law. Customer acknowledges and agrees that the Twenty Materials will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Twenty or its licensors on the Twenty Materials or any copies thereof. Customer shall (i) use reasonable security and operational measures to protect personal data received from or about End Users; and (ii) solely use, disclose, and otherwise process End User Data for the purposes contemplated in this Agreement.
3.5 Aggregated/Anonymized Data. Customer acknowledges and agrees that notwithstanding anything to the contrary, Twenty may use and disclose Customer Information and End User Data in aggregated and anonymized form to: (a) improve the Twenty Materials and Twenty’s related products and services; (b) provide analytics and benchmarking services; (c) generate and disclose statistics regarding use of the Services; or (d) for any public health or other lawful purposes.
3.6. Feedback. Customer hereby grants to Twenty a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any Twenty Materials any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Twenty Materials. Twenty will not identify Customer as the source of any such feedback.
4. EXPENSES; TAXES.. Customer will be responsible for payment of all applicable sales, use, value-added and other taxes, duties, tariffs, assessments, export and import fees, or other similar fees charges (other than taxes based on twenty’s income), and any related penalties and interest related to Customer’s use or receipt of the Twenty Materials. Customer will provide Twenty with official receipts issued by the appropriate taxing authority, or such other evidence as Twenty may reasonably request, to establish that such taxes have been paid. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. Twenty acknowledges and agrees that Customer is prohibited by Oklahoma law from reimbursing Twenty for taxes paid or incurred by it pursuant to this Agreement.
5. CUSTOMER RESPONSIBILITIES. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Information. Customer represents and warrants that it has (a) obtained all licenses, consents and permissions needed for Twenty to use the Customer Information and any other data, materials, or content provided to Twenty hereunder as contemplated by this Agreement has and (b) received all permissions, authorizations, and consents necessary for End Users’ participation in connection with the Services provided to Customer. Customer grants Twenty a non-exclusive, worldwide, royalty-free and fully paid license to use the Customer Information in connection with the Services, including without limitation for the development, operation, maintenance, promotion, and distribution of the Platform and Application.
6. PROFESSIONAL SERVICES. This Agreement does not contemplate the provision of any Professional Services. If customer wishes to receive Professional Services, it will notify Twenty and the parties will enter into Twenty’s standard contract for paid services, including any Professional Services.
7. WARRANTIES AND DISCLAIMERS.
7.1. Warranties. Customer represents and warrants that (a) it has all rights, authorizations, consents, and permissions necessary to perform its obligations or grant the rights and licenses hereunder, (b) it shall perform, and shall ensure that all Authorized Users perform, all of its obligations and exercise all of its rights hereunder in accordance with all applicable laws, rules, regulations and (c) it has provided all notices and disclosures, and obtained all consents, necessary for its use of the Twenty Materials as contemplated by this Agreement, including without limitation from and to End Users and Authorized Users. Customer shall be responsible for all acts, omissions, and breaches of this Agreement by its Authorized Users who are also employees of the State of Oklahoma (see 2.1, above) related to this Agreement.
7.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TWENTY MATERIALS ARE PROVIDED “AS IS,” AND TWENTY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, , MERCHANTABILITY, , , OR FITNESS FOR A PARTICULAR PURPOSE. TWENTY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE TWENTY MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE. TWENTY PROVIDES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING RESULTS OR RECOMMENDATIONS MADE OR OBTAINED FROM OR THROUGH THE TWENTY MATERIALS, INCLUDING WITHOUT LIMITATION THE ACCURACY, SAFETY, OR APPROPRIATENESS THEREOF, OR THAT ANY OF THE FOREGOING WILL BE ERROR FREE OR WILL PREVENT, AVOID, OR REDUCE ANY CHANCE OR RATE OF ILLNESS, CONTAGION, RISK, OR LIABILITY.
7.3. Informational Purposes. Customer acknowledges that the Twenty Materials and Services, all screening and testing performed in connection therewith, and all results thereof, are provided for informational purposes only. The Twenty Materials are not a substitute for professional care, advice, testing, guidance, or treatment, including without limitation from any medical professional, healthcare provider, public health authority, organization, or other agency (including without limitation the Centers for Disease Control and Prevention). Customer, and not Twenty, shall be responsible for any actions, or lack thereof, taken by Customer, any End User, or any other party as a result of, or in connection with, the Services. Both parties acknowledge that the Services are dependent upon the voluntary cooperation, participation and provision of information by End Users on a timely and accurate basis.
8. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TWENTY BE LIABLE FOR (A) ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF TWENTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) DAMAGES, IN THE AGGREGATE, IN EXCESS OF $100. IN NO EVENT WILL TWENTY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, TWENTY SHALL NOT BE LIABLE FOR ANY OF THE ACTS OR OMISSIONS OF ANY THIRD PARTIES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. The parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
9. TERM AND TERMINATION.
9.1. Term. This Agreement will begin on the date that you accept this Agreement (as described in the Preamble above), and continue in full force and effect as long as you access the Services, unless earlier terminated in accordance with the Agreement (the “Term”).
9.2. Termination. At its sole discretion, Twenty may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. Either party may terminate this Agreement immediately upon notice to the other party for any reason or no reason at all or if the other party materially breaches this Agreement, and such breach remains uncured more than five (5) days after receipt of written notice of such breach. Customer may delete its account to the Platform (“Account”) at any time by either (i) going into the account settings page in their Account and clicking “Delete Account” or (ii) contacting Twenty by emailing email@example.com; provided however, that Customer acknowledges and agrees that Customer Twenty may, subject to applicable laws, rules, and regulations, retain data and information after any Account closure and/or deletion, including related to Customer’s use of the Services, for the purpose of complying with its legal obligations.
9.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: Customer will cease all access and use of the Services, all licenses granted to the Services or Twenty Materials will immediately terminate and any amounts owed to Twenty under this Agreement will become immediately due and payable. Sections 1 (Background), 2 (Definitions), 3 (Intellectual Property; Proprietary Rights), 4 (Expenses; Taxes), 7 (Warranties and Disclaimers), 8 (Limitation of Liability), 10.3 (Effect of Termination), and 11 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
10.1. Publicity. Customer hereby agrees that Twenty may identify Customer as a customer of Twenty and the Services, including by using Customer’s name, logo, trademarks, service marks, and other identifiers on Twenty’s promotional and marketing materials, including without limitation the Twenty or Healthy Together website.
10.2. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Oklahoma, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for Oklahoma City, OK for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
10.3. Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Twenty, or any products utilizing such data, in violation of the United States export laws or regulations.
10.4. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
10.5. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.6. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Twenty may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of Customer. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
10.7. Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Twenty Materials.
10.8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of fees owed by Customer, if any) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, , or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
10.9. Independent Contractors. Customer’s relationship to Twenty is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Twenty.
10.10 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Twenty, by emailing firstname.lastname@example.org and if to Customer by emailing the email address you provided when signing up for the Services, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to 280 Park Avenue, 41st Floor, New York, NY 10017 if to Twenty and to the address you provided if to Customer by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
10.11. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
10.12. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Twenty.