CyTwist End User License Agreement

This Subscription Agreement (“Agreement”) is between CyTwist Ltd., an Israeli company, with its principal place of business at 2 Yaacov Rozen St., Ramat-Gan, 5246206 Israel (“CyTwist“), and the customer as detailed in the Order Form to which this Agreement is an Exhibit (“Customer”)Service. This Agreement governs Customer’s subscription to the Service and constitutes a binding contract in connection with any paid or evaluation use of the Service.

Each of CyTwist or Customer is sometimes described in this Agreement as a “Party” and together, “Parties”.

The Parties agree as follows:

  1. Definitions.
    1. “Customer Data” means all data and information associated with Customer, which is uploaded to, collected, processed, generated, and/or stored within the Service by Customer or through Customer’s use of the Service or provided in support tickets, but excluding System Data.
    2. “Documentation” means CyTwist’s standard user documentation furnished or made available by CyTwist in conjunction with the Service (as may be revised by CyTwist from time to time). 
    3. “Law” means any federal, state and local law, statute, ordinance, rule or regulation of any jurisdiction. 
    4. “Order Form” means a document agreed to in writing and executed among Customer and CyTwist or a Partner covering Customer’s subscription to the specified Service or an Evaluation offering. 
    5. “Third Party Service” means a third party that manages the installation, onboarding and/or operation of the Service on Customer’s behalf.
    6. “Service” means the services offered by CyTwist which are set forth in the Order Form.
    7. “System Data” means deidentified data derived and/or collected from the Service and/or the Customer’s use of the Service, including without limitation, logs, session data, support data, usage data, aggregate statistics, performance and bug reports, any threat or potential threat detections collected by the Services and/or system behavioral information (including without limitation correlative and/or contextual data) and other information about Customer’s use of Services as generated by the Services and derivatives thereof.
  2. Service Access and License Grant. Subject to the terms and conditions of this Agreement (including Customer’s compliance with its payment obligations hereunder), CyTwist grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the Subscription Term, to (a) remotely access and use for internal purposes only CyTwist’s Service, which is provided via cloud service, on a Software as a Service (SaaS) basis, and any related Documentation. Use of the Service shall be in accordance with the then-current Documentation.
  3. Third Party Service. If Customer enters into an agreement with a third party for a Third Party Service, then Customer may allow such Third Party Service to use the Service, provided that (i) as between the Parties, Customer remains responsible for compliance with this Agreement; (ii) such Third Party Service only uses the Service for Customer’s internal purposes and not for the benefit of any third party or the Third Party Service, and agrees to this Agreement in providing services to Customer; and (iii) Customer remains liable to CyTwist for the Third Party Service’s use of the Service on Customer’s behalf. 
  4. Restrictions. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  Feedback. If Customer provides CyTwist with any feedback, ideas or suggestions regarding the Service and/or Documentation (“Feedback“), Customer hereby grants CyTwist a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, aggregate, reproduce, distribute, create derivative works of, publicly display, publicly perform, and otherwise fully exploit such Feedback, for any use and purpose whatsoever. For the avoidance of doubt, such Feedback shall not be deemed Customer’s Confidential Information.
  5. Support. For the duration of the Subscription Term, and subject to Customer’s compliance with its payment obligations hereunder, CyTwist will provide the Service support in accordance with the applicable level of support plan purchased by the Customer. CyTwist holds the right to change the support plan from time to time. 
  6. System Data. CyTwist may compile System Data and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer Confidential Information or include Customer’s company name. CyTwist retains sole and exclusive ownership of all intellectual property rights in such System Data.
  7. Ownership.  
    1. Service. As between the Parties, and except as granted under the Agreement, CyTwist is and shall remain the sole and exclusive owner of all intellectual property rights in and to the Service, the Documentation, System Data and any enhancements to the foregoing. Customer’s sole rights to the Service and Documentation are set forth in the License, and any rights not expressly granted to Customer in this Agreement, are hereby reserved.
    2. Customer Data. As between the Parties, Customer is and shall remain the sole and exclusive owner of all Intellectual Property Rights in and to the Customer Data. 
  8. Payments.
    1. Subscription Fees. Customer’s right and CyTwist’s obligations (including the support services) in this Agreement are subject to Customer’s timely payment in full to CyTwist or, if applicable, its authorized Partner or partner from whom Customer has ordered the Service (the “Partner”), of the subscription fees (the “Subscription Fees“). The Subscription Fees shall be determined according to the pricing set forth in the “Order Form”. \
    2. Payment Terms. Unless expressly stated otherwise in the Order Form: (a) all payments under this Agreement are quoted and shall be paid in United States Dollars; (b) all CyTwist (or Partner, as applicable) invoices shall be paid within thirty (30) days of the date of invoice. In any event, Payments shall be made without any right of set-off or deduction, and are irrevocable and nonrefundable. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full, at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable Law (“Interest“). In addition, CyTwist may at its sole discretion terminate or suspend the Customer’s access to or use of the Service, if the Customer is in default with any payment obligations hereunder which was not cured within ten (10) days of CyTwist’s notice, until Customer complies with its payment obligations.
    3. Taxes. All amounts payable to CyTwist (or the Partner) under this Agreement are exclusive of applicable taxes (including without limitation VAT), withholdings or duties, and the fees set forth in the Order Form are the net amounts that CyTwist (or the Partner) shall be paid by Customer. Customer shall be responsible for the payment of all taxes, withholdings and duties of any kind payable with respect to its access to and use of the Service and its receipt of the support services, as well as services arising out of or in connection with this Agreement (if any). In the event that Customer is required by applicable Law to withhold or deduct taxes from any payment under this Agreement, then the amounts due to CyTwist (or Partner, as applicable) shall be increased by the amount necessary so that CyTwist (or its Partner) receives an amount equal to the sum it would have received had Customer not made any withholding or deduction. 
  9. Termination. 

Either Party may terminate this Agreement immediately upon written notice to the other Party: 

  1. if the other Party materially breaches this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice (including via email or confirmed fax) specifying the material breach; and/or
  2. if the other Party is declared bankrupt by a judicial decision, or, in the event an involuntary bankruptcy action is filed against such other Party, it has not taken, within sixty (60) days from service of such action to such Party, any possible action under applicable Law for such filed action to be dismissed.
  3. In the event that the Order Form sets force free Evaluation Period, at any time during such free Evaluation Period. 
  4. Notwithstanding the above, CyTwist reserves the right to immediately terminate or suspend Customer’s access to or use of the Service if CyTwist reasonably believes that Customer is using the Service in a manner or for a purpose that is likely to cause harm to CyTwist or any other third party.

  1. Effect of Termination; Survival. Upon the effective date of termination of this Agreement for any reason, Customer shall (a) immediately discontinue all use of the Service and Documentation; (b) immediately cease any use of the Service and delete, permanently and irretrievably, all copies of the Service and Documentation; and (c) promptly pay any outstanding fees owing to CyTwist, including (where CyTwist has terminated the Agreement) all Subscription Fees that would otherwise be payable for the remainder of the Term, but for the termination. Sections ‎4, 6, ‎7, ‎8.3, ‎13, 14, 7, 22 and 23 (inclusive) shall survive any termination of this Agreement. Customer acknowledges that Customer Data may become inaccessible after termination of this Agreement, as further detailed in the DPA.
  2. Representations and Warranties. Each Party hereby represents and warrants that it (a) is duly organized and validly existing under the Laws of its jurisdiction of formation and has the full power and authority to enter into this Agreement; (b) is not bound by any agreements, obligations or restrictions that would interfere with its obligations under this Agreement, and (c) it has received all required approvals to perform its obligations under this Agreement (including, with respect to Customer, providing to CyTwist the Customer Data). 
  3. Right to Use Customer Data. (a) Customer grants CyTwist a non-exclusive, royalty-free license to access and use the Customer Data as necessary during the Subscription Term for CyTwist to: (i) provide the Service and support to Customer during the Subscription Term; and (ii) administer this Agreement.
  4. Warranty and Warranty Disclaimer. 
    1. During the applicable Subscription Term, CyTwist represents and warrants that, under normal authorized use, the Service shall substantially perform in conformance with its Documentation. This warranty is personal and may not be assigned. As the Customer’s sole and exclusive remedy and CyTwist’s sole liability for breach of this warranty, CyTwist shall use commercially reasonable efforts repair the non-working portion of the Service. If CyTwist determined that it is unable to do so, CyTwist may, in its own discretion, allow Customer to terminate the affected Order Form immediately upon notice to CyTwist. In such event, if Customer paid fees directly to CyTwist and not to a Partner, CyTwist will provide to Customer a pro-rata refund of any pre-paid fees paid under this Agreement for the remainder of the then current monthly or annual term. 
    2. In addition, the Service is subject to the Service Level Agreement attached hereto as Schedule A. 
    3. THIS WARRANTY WILL NOT APPLY AND WILL BE VOID IF (I) THE SERVICE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR ITS DOCUMENTATION; (II) A MALFUNCTION IN THE SERVICE HAS BEEN CAUSED BY ANY SYSTEMS, EQUIPMENT OR TECHNOLOGY NOT SUPPLIED BY CYTWIST; (III) = FAILURE TO FOLLOW CYTWIST INSTALLATION, OPERATION, OR MAINTENANCE INSTRUCTIONS, (IV) NEGLIGENCE OR WILLFUL MISCONDUCT BY CUSTOMER OR ITS USERS, OR (V) ANY FORCE MAJEURE INSTANCE AS DEFINED BELOW. 
    4. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY OF SERVICE, OR NON-INTRUSION DUE TO HACKING OR OTHER SIMILAR MEANS OF UNAUTHORIZED ACCESS OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED. CUSTOMER UNDERSTANDS AND AGREES THAT CYTWIST DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, DISCOVER OR REMEDIATE ALL OF CUSTOMER’S SYSTEM THREATS OR VULNERABILITIES, AND CUSTOMER WILL NOT HOLD CYTWIST RESPONSIBLE THEREFOR. 
    5. IN ADDITION, AND EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE HEREIN, THE SERVICE, DOCUMENTATION, APIS, AND ANY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; AND (II) CYTWIST MAKES NO REPRESENTATION OR WARRANTY REGARDING THE CONTENT, EFFECTIVENESS, RELIABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY OF THE SERVICE, DOCUMENTATION, OR SERVICES, OR THAT CUSTOMER’S USE OF THE FOREGOING WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED OR ERROR-FREE.
  5. Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: 

  1. IN NO EVENT WILL CYTWIST OR ITS LICENSORS OR AFFILIATES BE LIABLE FOR: 

  1. ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
  2. ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
  3. ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL, WORK STOPPAGE, BUSINESS INTERRUPTION, DAMAGE TO OTHER SOFTWARE, COMPUTER FAILURE OR MALFUNCTION OR DOWNTIME OR THIRD PARTY CLAIMS.; AND/OR 
  4. THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. 

  1. EXCEPT IN CASE OF WILLFUL MISCONDUCT BY CYTWIST, THE TOTAL CUMULATIVE LIABILITY OF CYTWIST AND ITS LICENSORS AND AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF SUBSCRIPTION FEES PAID BY CUSTOMER TO CYTWIST (OR PARTNER, AS APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. 
  2. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) EVEN IF CYTWIST OR ITS AFFILIATES HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES OR DAMAGES; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT). 

  1. Infringement Indemnity. 
    1. In the event of any claim, action, proceedings or suit by a third party against Customer claiming that the Service infringes such third party’s patent registered in the US, copyright, or trademark (an “Infringement Claim“), CyTwist will at its expense defend and hold harmless Customer against the Infringement Claim, and will pay (a) the amounts awarded (and then-currently payable) against Customer in such Infringement Claim (to the extent of such infringement); or (b) the amounts agreed to settle such Infringement Claim. 
    2. CyTwist shall have no obligation or liability with respect to an Infringement Claim that is based upon or results from: (a) the combination of the Service with any equipment, hardware, firmware, or software not furnished by CyTwist; (b) any modification of the Service by Customer; (c) unauthorized use of the Service; (d) Customer’s failure to install or have installed any enhancements to the Service, as instructed by CyTwist; (e) compliance by CyTwist with Customer’s specifications, designs and/or instructions. 
    3. Should the Service (or any part thereof) become, or in CyTwist’s opinion be likely to become, the subject of any Infringement Claim, then Customer permits CyTwist at CyTwist’s sole discretion and expense, to either (a) procure for the Customer the right to continue using the Service or such part (as the case may be); (b) replace or modify it so that it becomes non-infringing or (c) terminate this Agreement and refund to Customer the unused portion of any prepaid Subscription Fees. 
    4. This Section ‎19 (Indemnification) states the entire obligation and liability of CyTwist, and the sole and exclusive remedy of Customer, with respect to an Infringement Claim. 
    5. Customer Indemnity. Customer, at its sole expense, will indemnify CyTwist and its directors, officers, employees and agents or other authorized representatives (“CyTwist Indemnitees”) from and against any Claim, and be liable for any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of Customer’s use of the Service in breach of this Agreement.t.
    6. Procedures. The indemnifying Party’s indemnification obligations under this Section 19 are conditioned upon the indemnified Party: (i) giving prompt written notice of the Claim to the indemnifying Party once the indemnified Party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (ii) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party); and (iii) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the Claim.
  2. Data Privacy. To the extent Customer Data includes Personal Data, CyTwist will process Personal Data in accordance with CyTwist’s Data Processing Addendum (“DPA”) found at www.cytwist.com/data-processing-addendum/ and in compliance with applicable laws. 
  3. Confidentiality. 
    1. Each Party (the “Recipient“) may have access to certain non-public and/or proprietary information and materials of the other Party (the “Discloser“), in any form or media and regardless of the manner in which furnished, including without limitation trade secrets and other information related to the products, services, practices and methods, software, technology, data, know-how, or business of the other Party, and any such other information that a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (“Confidential Information“). The Parties agree that the terms of this Agreement (for the avoidance of doubt, not the existence of this Agreement) are Confidential Information (although each Party may disclose said terms to its advisors, agents and investors or potential investors, subject to a substantially similar confidentiality obligation).  
    2. Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality by Recipient to Discloser; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; (e) is independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Confidential Information received from the Discloser.
    3. The Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information, within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except its employees and permitted personnel hereunder that are bound by written agreements at least as restrictive and protective of the Discloser as provided for in this Agreement.
    4. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient shall promptly notify the Discloser in writing of such law, regulation or order and reasonably cooperate with the Discloser in opposing such disclosure or obtaining such other protective measures. In any event, any disclosure made pursuant to this Section ‎21.4 shall be made solely to the extent required by such law, regulation or order (as the case may be). 
    5. Upon the earlier of termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return the Discloser’s Confidential Information to the Discloser or, if requested by Discloser, permanently and irretrievably delete or destroy (as instructed) such Confidential Information and certify such compliance in writing.
    6. Each Party acknowledges that in the event of a breach or threatened breach of this Section (Confidentiality) by the other Party, the non-breaching Party may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section (without the need to post a bond), without derogating from any other rights and remedies under this Agreement, at law or in equity.   
  4. Reference Customer. CyTwist may use Customer’s name and logo on its website and in its promotional materials to state that Customer is a customer of CyTwist and a Service user. 
  5. Independent Contractors. The Parties are solely independent contractors. Nothing in this Agreement shall create a partnership, joint venture, agency, or employment relationship between the Parties. Neither Party may make, or undertake, any commitments or obligations on behalf of the other.
  6. Assignment. This Agreement and any rights or obligations hereunder may not be assigned by either party without the express prior written consent of the other party, which will not be unreasonably withheld (except that assignment in connection with the sale of a party (by merger or sale of all or substantially all assets or shares shall not require such consent)). Subject to the foregoing conditions, this Agreement shall bind and benefit each Party and its respective successors and permitted assigns. Any prohibited assignment or transfer shall be null and void.
  7. Export Compliance. Customer shall comply with all, and shall be solely responsible for, obtaining all required authorizations and licenses from applicable government authorities under any applicable export control laws, in connection with Customer’s use of the Service and Documentation. 
  8. Governing Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to its conflicts of law rules and principles. Any claim, dispute or controversy between the Parties shall be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv-Jaffa and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek injunctive relief or specific performance in any court of competent jurisdiction worldwide. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 
  9. General.
    1. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written statements, agreements and understandings regarding such subject matter. This Agreement may only be amended via written document signed by both Parties. 
    2. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  
    3. Waiver. No failure or delay by either Party in exercising or enforcing any right, power or remedy under this Agreement (or otherwise at law or in equity) will operate as a waiver thereof. Waivers shall apply only in the specific instance in which given. Any waiver by of any provision of this Agreement shall only be valid if in a writing referencing this Agreement, which is duly signed by both Parties.
    4. Remedies. No right or remedy conferred upon or reserved by any Party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
    5. Severability. If any court of law that has jurisdiction rules that any provision of this Agreement is invalid, then such invalid provision will not affect any of the remaining provisions of this Agreement, which shall remain in full force and effect.
    6. Force Majeure. Except for payment obligations hereunder, neither Party shall be liable for any failure to perform due to causes beyond its reasonable control, including, but not limited to, pandemic, disruption of power or other essential services, interruption or termination of service provided by any service providers being used by CyTwist, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party, fire, flood, accident, war, terrorism, riot, earthquake, telecommunications line failures, electrical outages, network failures, acts of God or labor disputes.
    7. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. 

SCHEDULE A

CYTWIST SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) governs Customer’s use of the Service during the Subscription Term under the Subscription Agreement (“Agreement“). 

Capitalized terms used herein shall have the meaning specified in the Agreement. CyTwist reserves the right to change the terms of this SLA upon 30-day notice.

  1. Service Commitment 

CyTwist will use commercially reasonable efforts to make the Service available with a monthly uptime percentage of at least 99.9% (the “Service Commitment”), measured in minutes on a monthly basis. The Service Commitment is calculated based on the total number of minutes in a calendar month, minus the Downtime period, divided by the total number of minutes in a calendar month.

  1. Downtime

The Service will be deemed to be unavailable during the time in which the Service is unavailable to the Customer (“Downtime“).

Customer’s sole and exclusive remedy and the entire liability of CyTwist in connection with a Downtime, shall be to credit Customer 2% of the applicable monthly subscription fee (“Downtime Credit“) for each SLA breach. An SLA breach is defined as a period of 60 consecutive minutes of Downtime. In the case of an annual subscription, CyTwist shall calculate the monthly subscription fee by dividing the annual subscription fee by twelve (12).

Downtime Credit are not transferable, do not convert to cash refunds or refunds in any other form, and expire after one month of having been issued. The Downtime Credits and shall not exceed one (1) week of subscription fees in any one (1) calendar month.

  1. Requesting Service Credits

To be eligible for Service Credits, an affected Customer must notify CyTwist of the Downtime and request the credit via contact@cytwist.com within 48 hours of the Downtime. This request must include the dates, times, and duration of the Downtime. 

Once CyTwist confirms the Downtime and approves the claim, the corresponding Downtime Credit will be credited against Customer’s account, in accordance with CyTwist’s credit procedures. Failure to request Downtime Credits or provide the required documentation supporting the requests within the above period, will make the Customer ineligible for Downtime Credits.

The Customer must be current on all outstanding invoices in order to be eligible for the Downtime Credits referenced in this SLA. No Downtime Credits will be extended if the Customer is delinquent in its payment of outstanding invoices.

  1. SLA Exclusions

This SLA only applies to unplanned Downtime in standard operating conditions. Exclusions include, but are not limited to, the following:

  • Downtime of the Service during scheduled maintenance windows, emergency maintenance or any other agreed-to scheduled Downtime activity.
  • Downtime caused by failures of third-party products, systems or services that are outside of CyTwist’s reasonable control. 

  • Downtime associated with improper use of the Service.
  • Any Downtime that resulted from act or omission of Customer or anybody on its behalf or any other third party, not under the control or responsibility of CyTwist.
  • Any external factor affecting Customers from making use of Service.
  • Bugs in code or services for which there is no commercially known fix. 
  • Any Downtime caused as a result of the Customer’s equipment, software or other technology.
  • Downtime resulting from accident, negligence, abnormal physical or electrical stress, abnormal environmental conditions, abuse or misuse of the Service. 
  • Downtime resulting from the combination of the Service with equipment or software not authorized or provided by CyTwist or approved by CyTwist in the Documentation. 

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