You’re serious about your wind power operations,
we are too
Welcome to Twindo! We offer an online Software and service that helps businesses to streamline their operations in the wind energy management industry. These General Terms and Conditions apply to any Standard Service Agreement for the use of our services that you may enter into with Twindo. These Terms and Conditions cover your use and access to our online Software and are a legally binding agreement between you and Twindo. Please read these Terms and Conditions carefully and ensure that you understand them. If you do not agree to these Terms and Conditions, you must not use the Twindo Software and/or Services.
These Terms and Conditions were most recently updated in October 2023.
Within these Terms and Conditions, these capitalised terms will have the following meanings:
“Agreement” means a legally binding proposal together with a Standard Service Agreement between the Client and Twindo;
“Client” means any user of the Software who has entered into an Agreement with Twindo;
“Client Account” means the account the Client needs to set up in order to use the Software;
“Client Computer Systems” means the Client’s computer hardware, firmware, software and communications infrastructure through and on which the Software is to be used;
“Client Content” means any content submitted to our Software by a Client, including, but not limited to, data, text, images, audio, video, and any other form of information capable of being stored on a computer that appears on, or forms part of, the Software;
“Confidential Information” means all business, technical, financial or other information created or exchanged between the parties throughout the term of this Agreement;
“Data Migration” means any transfer of Client’s data into the Software by Twindo, either from previous software systems, data sheets or any other digital or manual source;
“Data Protection Legislation” means all applicable legislation in force from time to time in the Netherlands applicable to data protection and privacy including, but not limited to, the retained EU General Data Protection Regulation ((EU) 2016/679) (the “GDPR”) and any applicable guidance or codes of practice issued by the Dutch Data Protection Authority or other applicable regulatory authorities from time to time;
“Documentation” means any manuals, instructions, readme files and other information concerning the Software, made available by Twindo;
“Fee(s)” means the sums payable by the Client in return for access to the Software and support services provided by Twindo;
“Intellectual Property Rights” means all vested contingent and future intellectual property rights including but not limited to copyright, trade marks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;
“Services” means the Twindo services, which include, but are not limited to, the provision of the Software and associated services;
“Software” means the Twindo online software solution and any updates or supplements to it, as described in detail in the Agreement;
“Twindo” means Twindo B.V., a private company with limited liability, incorporated under the laws of the Netherlands, with registered address Dahliastraat 16, (1541 CP) Koog op Zand, the Netherlands (also referred to as “we”, “our” or “us”);
“Written / in Writing” means communication via registered mail or via e- mail.
2.1 Applicability. These Terms and Conditions apply to all Agreements entered into between Twindo and the Client, and any other legally binding agreement that expressly refers to these Terms and Conditions.
2.2 Client Terms. All terms and conditions maintained by the Client that are contrary to these Terms and Conditions are hereby rejected and therefore do not apply to the use of the Software and/or the Services.
2.3 Conflicting Terms. These Terms and Conditions form an integral part of the Agreement between Twindo and the Client and shall take precedence over any contrary or inconsistent terms and conditions appearing or referred to in such agreement between the parties. In case of inconsistency between the Agreement terms and the Terms and Conditions, the Terms and Conditions shall prevail unless it involves any terms regarding privacy in which case the Data Processing Agreement shall prevail.
2.4 Offers. All Twindo’s offers and other forms of communication are without obligation, unless Twindo has agreed otherwise in writing in a legally binding agreement.
2.5 Acceptance. The use of the Software and/or the Services requires the unconditional acceptance by the Client of the applicability of these Terms and Conditions. It is the Client’s responsibility to read and understand the Terms and Conditions.
2.6 Capacity. The Client may not use the Services nor accept these Terms and Conditions if the Client is not of legal age or in possession of the required mental and/or legal capacity to form a binding contract with Twindo.
3.1 Standard. Twindo shall perform the Agreement to the best of its knowledge and ability. The Services are performed by Twindo on the basis of a best efforts obligation, not a results obligation.
3.2 Change of Services. Twindo shall have the right to make changes to the Services to the extent necessary to comply with applicable law, business priorities, or similar requirements, or which do not materially affect the nature or the quality of the Services. Twindo will try to give the Client reasonable notice of any major changes.
3.3 Refusal to Provide Services. Twindo shall have the right to, at its sole discretion, refuse to provide the Services, or part thereof, to any (potential) Client, for any reason and at any time.
3.4 Twindo Services. Twindo’s Services include the provision of the Software and the Documentation, as well as the provision of a reasonable level of support by means of e- mail, chat, or similar mechanism in the form of consultations, assistance and advice concerning installation, configuration and use of the Software. After the Software is installed and working, any additional support, shall be subject to the agreed terms of the Agreement.
3.5 Additional Services. Additional services are services that can be performed by Twindo, but that are not included in the Services specified on the Agreement. Additional services shall be charged separately at the Client’s expense. Twindo can provide additional services such as Data Migration creation of new features, training, service or support regarding the Software at terms to be agreed upon between parties. Before additional services are performed a written price indication will first be issued for approval. Depending on the complexity, a step-by-step plan will be offered.
3.6 Withdrawal of the Software. Twindo reserves the right to modify or withdraw, temporarily or permanently, the Software at any time to the extent permitted by the applicable law.
4.1 Required Information. The Client must ensure that all details and information, of which Twindo has stated it is required for the performance of the Services, or of which the Client should reasonably understand it to be necessary for such performance, will be provided to Twindo in a timely, complete and correct manner.
4.2 Duty to Inform. The Client must duly inform Twindo of any fact and circumstances that may be relevant in connection with the execution of the Services.
4.3 Accuracy Guarantee. The Client hereby guarantees the correctness, completeness, and reliability of relevant information provided to Twindo.
4.4 Risk of Use. The Client bears the full risk of selecting the Services and for ensuring these are fit for purpose. The Client must exercise the utmost care to ensure and guarantee that the requirements set for Twindo’s performance are correct and complete. Measurements and data provided in drawings, images, catalogues, websites, offers, advertising material, standardisation sheets and the like are not binding on Twindo, unless explicitly stated otherwise in writing.
4.5 Installation. The Client is required to install and/or use the Software on the Client Computer Systems in accordance with the instructions in the Documentation.
4.6 Interoperability. If the Client requires information to effect interoperability of the Software with other software, the Client will request Twindo in Writing and with motivation for the necessary information. Twindo will then inform the Client within a reasonable period whether the Client can obtain the requested information, and under which condition it is provided.
4.7 End-Users. The Client is exclusively responsible for the use of the Services, including the conduct of individual end-users that access the Services and/or the Software on the Client’s behalf (such as the Client’s employees and contractors) and must ensure that all use is in accordance with these Terms and Conditions. The Client shall notify Twindo immediately of any breaches of these Terms and Conditions by any such end-users.
5.1 Creating an Account. In order to use the Services, the Client needs to register and create a Client Account. The Client must provide accurate, current, and complete information in order to set up the Client Account.
5.2 License to Use. Twindo hereby grants one or more non-exclusive, non-transferable, non- pledgeable, non-sublicensable, revocable licence(s) to use the Software in accordance with these Terms and Conditions, and for the Client’s own organisation as required for the intended use. All other rights are reserved by Twindo. One (1) license grants the Client the right to have one (1) employee of the Client access the Software. The Client shall be required to obtain a license for every active user.
5.3 License Restrictions. The Client hereby agrees that the Client will:
5.3.1 not use the Software other than through the Twindo mobile application or web browser;
5.3.2 ensure that the Software is used by that amount of end-users for which the Client obtained a license;
5.3.3 not rent, lease, sub-license, loan, provide, or otherwise make available, the Software or the Services in any form, in whole or in part to any person without prior written consent from Twindo;
5.3.4 not copy the Software except as part of the normal use of the Software or where it is necessary for the purpose of back-up or operational security;
5.3.5 not translate, merge, adapt, vary, alter or modify, the whole or any part of the Software nor permit the Software to be combined with, or become incorporated in, any other programs, except as necessary to use the Software on devices as permitted in these terms;
5.3.6 not conduct or request that any other person, whether legal or natural, conduct any load testing or penetration testing on the Software;
5.3.7 not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software or the Services, nor attempt to do any such things; and
5.3.8 comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the Software or any Services.
5.4 Duty of Confidentiality. The Client must maintain the confidentiality of the passwords and account information and the Client agrees to notify Twindo if the Client suspects a password is lost, stolen, or disclosed to an unauthorized third-party, or otherwise may have been compromised. Twindo has the right to disable any user identification code or password, whether chosen by the Client or allocated by us, at any time, if in our reasonable opinion the Client has failed to comply with any of the provisions of these Terms and Conditions.
5.5 Removal of Client. Twindo retains the right to, at its sole discretion, block any Client from using the Software or part thereof, for any reason, but including when the Client breaches these Terms and Conditions.
5.6 Harmful Material. The Client must not misuse our Software by knowingly introducing viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful. The Client must not attempt to gain unauthorised access to our Software, the service on which Software is stored, or any server, computer, or database connected to the Software. The Client must not attack our Software via a denial-of-service attack or a distributed denial-of-service attack. In the event of such a breach, the Client’s right to use the Software will cease immediately.
5.7 No Text or Data Mining; No Web Scraping. The Client shall not conduct, facilitate, authorise or permit any text or data mining or web scraping in relation to the Software or any services provided via, or in relation to, the Software. This includes using (or permitting, authorising or attempting the use of):
a. Any "robot", "bot", "spider", "scraper" or other automated device, program, tool, algorithm, code, process or methodology to access, obtain, copy, monitor or republish any portion of the Software or any data, content, information or services accessed via the same.
b. Any automated analytical technique aimed at analysing text and data in digital form to generate information which includes but is not limited to patterns, trends and correlations.
The provisions in this clause should be treated as an express reservation of our rights in this regard, including for the purposes of Article 4(3) of Digital Copyright Directive ((EU) 2019/790). This clause shall not apply insofar as (but only to the extent that) Twindo is unable to exclude or limit text or data mining or web scraping activity by contract under the laws which are applicable to Twindo.
5.8 Uploading Client Content. Whenever the Client uploads Client Content to our Software, the Client will be responsible for any loss or damage Twindo suffers as a result of the Client Content breaching any of the provisions of this Article 5. The Client shall retain all of ownership rights in Client Content, but the Client is required to grant us a limited licence to use, store and copy that content and to distribute and make it available to third parties. Twindo has the right to remove any posting the Client makes on the Software if, in Twindo’s opinion, the content does not comply with the content standards set out in this Article 5.
5.9 Customer Data. Certain Customer Data may belong to third parties. In such cases, the Client warrants that all such Customer Data is used with the consent of relevant third parties. Twindo does reserve the right to employ federated learning for the purpose of spotting patterns in the information implemented into the Software by the Client. The information which Twindo acquires as a result of the federated learning will be owned exclusively by Twindo and may be used in any way it sees fit.
5.10 Security. Twindo is at any time permitted to install technical and organizational facilities to protect the Software, whether directly or indirectly. The Client may not remove or circumvent any of such technical facilities or have these removed or circumvented. The Client is required to have adequate security measures in place in order to use the Software safely. Twindo may give the Client instructions about security features intended to prevent or to minimalize incidents, or the consequences of incidents, that may affect security. If the Client should fail or follow the instructions issued by Twindo or by a relevant public authority, Twindo shall not be liable, and the Client hereby agrees to indemnify Twindo against any damage that may arise as a result.
5.11 Right to Audit. Twindo is entitled to investigate whether the Client uses the Software in a manner that complies with the conditions of the Agreement and/or these Terms and Conditions. The Client undertakes to cooperate with such an audit. Twindo shall bear the costs of such audit, as long as no infringements of the Agreement are found. If the Client is found to infringe the Agreement and/or these Terms and Conditions, the Client will bear the costs of the audit.
5.12 Breach of these Terms. Twindo may terminate the Client’s rights to use the Software at any time by contacting the Client if the Client has broken these Terms and Conditions in a serious way. If what the Client has done can be put right, Twindo shall give the Client a reasonable opportunity to do so. If Twindo ends the Client’s rights to use the Software, the Client must stop all activities authorised by these Terms and Conditions, including the Client’s use of the Software.
6.1 Twindo Maintenance. Twindo shall be responsible for all maintenance and upgrades to the Software which may from time to time be required.
6.2 Scheduled Maintenance. Unless maintenance is corrective in nature, maintenance shall only take place at scheduled times, which will be communicated to the Client in advance. Corrective maintenance shall be undertaken as and when required. Twindo shall use its best and reasonable endeavours to provide as much notice as possible in the case of corrective maintenance, however advance notice may not always be possible.
6.3 Workaround. Whenever possible, Twindo shall provide a workaround solution to the Client to enable the Client’s continued use of the Software or to enable use that is as close to normal as is possible under the prevailing circumstances.
7.1 Inspection and Inventory. Prior to commencement of the Services, the Client must conduct a full inspection and inventory of the Client Computer Systems to ensure compatibility with the Software. Where appropriate, Twindo may offer recommendations for upgrades and other alterations. Any such recommendations shall be presented in a written report to the Client.
7.2 Physical Access. Twindo may from time to time require physical access to the Client Computer Systems for the purposes of inspecting, testing and upgrading the Client Computer Systems to ensure their compatibility with the Software. Such access shall be granted by the Client upon receipt of reasonable notice from Twindo.
7.3 Remote Access. Twindo shall be entitled at all times during the term of the Agreement to access the Client Computer Systems remotely for the purposes of inspecting, testing and upgrading the Client Computer Systems to ensure their compatibility with the Software.
7.4 Disruption to Software. Where, in the opinion of the Twindo, the Client Computer Systems are likely to cause disruption to the Software, Twindo may request that the Client disconnect from the Software until advised that reconnection is possible. Twindo may require changes such as upgrades or equipment replacement to be made to the Client Computer Systems prior to reconnection.
7.5 Unauthorized Access. In the event of any unauthorised access by the Client of the Software, in breach of sub-Article 7.4 or otherwise Twindo shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate the Agreement in accordance with Article 13 below.
7.6 Third-Party Access. The Client shall ensure that no Client Computer Systems are connected to a third party system or other service, communications system or network in such a way that the Software may be accessed by unauthorised third parties.
8.1 Obligation. Upon entering into the Agreement with Twindo, the Client will become legally obliged to pay the Fees. The Client is required to pay the Fees in a timely manner and in compliance with the payment conditions agreed upon.
8.2 Estimate. The Client cannot derive any rights or expectations from any cost estimate or budget issued by Twindo, unless Twindo agreed otherwise in writing.
8.3 Payment. The Client is required to pay any invoices issued to the Client within thirty (30) days after receipt of the invoice.
8.4 Taxes. All prices quoted to the Client and/or listed on the Twindo website shall be exclusive of Value Added Tax (VAT) and other government levies that have or shall be imposed, unless expressly agreed otherwise.
8.5 Currency. All invoices and payments shall be in Euros (€), unless agreed otherwise in writing.
8.6 Price Adjustment. Twindo may adjust the Fee(s), in writing with due observance of a period of at least sixty (60) days. If, in the latter case, the Client does not want to accept the price adjustment, the Client is entitled to terminate the Agreement by serving written notice of termination, within thirty days following the notification of the adjustment and effective from the date on which the new prices and/or rates would take effect.
8.7 Late Payments. If the Client fails to pay the Fee(s) due on time, statutory commercial interest (8% per annum) shall be payable by the Client on the outstanding amount without a demand notice of default being required, to be calculated for every day that non-payment persists. If the Client still fails to pay the amount due after receiving a demand or notice of default, Twindo may submit the claim for collection, in which case the Client shall also be obliged to pay in addition to the total amount due, all judicial and extrajudicial costs, including all costs charged by an external expert. While the Client’s non-payment persists, Twindo is entitled (a) to cease all Services and restrict the Client’s access to the Software, until all Fee(s) have been paid in full; and/or (b) terminate the Agreement in accordance with Article 13 of these Terms and Conditions.
8.8 Payment Upon Termination. Upon termination of the Agreement for whatever reason, the Client shall promptly pay all outstanding Fees and/or other amounts due.
9.1 Twindo Intellectual Property. The Client acknowledges and agrees that the Software is protected by Intellectual Property Rights. The Intellectual Property Rights relating to the Software are and remain the exclusive property of Twindo. The Twindo name and logo, and other Twindo trademarks, copyrights, databases, graphics and/or service marks, as well as other intellectual properties, used in connection with the Software are the intellectual property of Twindo. They may not be copied, imitated or used, in whole or in part, without the prior written permission of Twindo. The Client is not permitted to remove any designation concerning copyrights, trademarks, trade names or other rights of (intellectual) property from the Software, the Documentation and/or any other Twindo material.
9.2 No Assignment. The Agreement does not grant the Client any right or title to the Intellectual Property Rights of Twindo, other than the licences provided by Article 9.4 of these Terms and Conditions, nor does this Agreement in any way constitute a transfer or assignment of the Intellectual Property Rights to the Client. This includes any Intellectual Property Rights related to data of users accumulated by the Software.
9.3 Use of Intellectual Property. The software, websites, data files, databases, hardware, training, testing, examination materials, content, organization, graphics, text, images, video, design, compilation, advertising, as well as other materials such as analyses, documentation, reports, offers, materials, and all other material on the Software or within the Services are protected under Intellectual Property Rights and are the exclusive property of Twindo or its licensors. Those works are protected by copyright laws and treaties around the world. All such rights are reserved. The copying, rearrangement, redistribution, modification, use or publication by the Client, directly or indirectly, of any such matters or any part of the Software, except for the limited rights of use granted hereunder, is strictly prohibited. The Client must not use any part of the content on the Software for commercial purposes without obtaining a licence to do so from us or Twindo’s licensors.
9.4 Client Features. In the event that Twindo upon request of the Client incorporates any new features or functionalities into the Software, such new features and/or functionalities shall be the sole and exclusive property of Twindo, unless explicitly agreed otherwise in Writing.
9.5 Twindo IP Indemnification. Twindo indemnifies the Client against any claim of a third party based on the allegation that the Software, or any part thereof infringes an intellectual property right of that third party, provided always that the Client promptly informs Twindo in writing about the existence and content of the claim and that the Client leaves the settlement of the claim, including any arrangements to be made in this context, entirely up to Twindo. To this end, the Client hereby grants Twindo the powers of attorney and information required and the Client shall render the assistance Twindo requires to defend itself against such claims. This obligation to indemnity does not apply if the alleged infringement concerns (i) works or materials made available by the Client to Twindo for use, modification, processing or maintenance or (ii) modifications the Client has implemented or modifications the Client has had implemented in the Software, websites, data files, hardware or other works and materials without Twindo’s written permission. If it is irrevocably established in court that any materials developed by Twindo itself infringe any intellectual property right belonging to a third party, or if, in Twindo’s opinion, there is a good chance that such an infringement will occur, Twindo shall ensure, if possible, that the Client can continue to use, or use functional equivalents of the Software. Any other or further obligation that Twindo might have to indemnify the Client against any infringement of a third party's intellectual property right is hereby excluded.
9.6 Client Content. When the Client uploads or posts any Client Content to our Software, the Client grants Twindo the following right to use that Client Content: a worldwide, non- exclusive, royalty-free, transferable licence to use, reproduce, distribute, prepare derivative works of, display, and perform that Client-generated content in connection with the Services. By uploading Client Content, the Client warrants that any such contribution complies with these Terms and Conditions. The Client shall indemnify, defend, and hold harmless Twindo from all claims, liabilities, damages, expenses, and costs (including reasonable attorneys’ fees) related to the actual or alleged infringement of any intellectual property right or misappropriation or wrongful use of information or documents by the Client.
9.7 Client Logo. Twindo may use the Client’s logo, figurative mark, or (company) name in its own marketing materials and external communication, indicating that the Client is a user of Twindo.
9.8 Affiliation with Twindo. The Client is encouraged to publicly report its use of the Software, e.g. in press releases, annual reports or environmental reports concerning its organization. To this end, Twindo hereby grants Client a non-exclusive, non-transferable, non-sublicensable and revocable license under its trademark(s) and copyrights concerning the name “Twindo” and the associated logos as made available on the Twindo website. However, Client must use the name and logos in unmodified form and Client must adhere to any specific rules given by Twindo, which rules are generally available on the Twindo website. Client may not create any false or misleading impressions regarding its affiliation with Twindo. Client may not register or apply for any trademarks or Internet domain names that contain the name “Twindo” or any confusingly similar designation. Twindo is entitled to demand transfer of any such trademarks or domain names by Client to Twindo. The license of this sub-Article 9.8 terminates automatically upon termination or expiry of this Agreement, regardless of reason.
10.1 Client Data. During the term of the Agreement and after the termination or expiration of the Agreement for any reason, Twindo shall use its best and reasonable endeavours to ensure that all Client Data is kept secure and confidential. Twindo shall not, in the absence of express written consent from the Client, disclose Client Data to any third party unless such disclosure is required by law in which case the Client shall be notified in writing of the disclosure.
10.2 Obligation of Confidentiality. During the term of the Agreement and after termination or expiration of this Agreement for any reason for a period of 5 years, the following obligations shall apply to the party receiving Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”).
10.3 Use of Confidential Information. The Receiving Party:
10.3.1 may not use any Confidential Information for any purpose other than the performance of their obligations under the Agreement;
10.3.2 may not disclose any Confidential Information to any third party except with the prior written consent of the Disclosing Party; and
10.3.3 shall make every effort to prevent the unauthorised use or disclosure of the Confidential Information.
10.4 Exceptions to Obligation. The obligations of confidence referred to in this Article 8 (excluding sub-Article 8.1) shall not apply to any Confidential Information that:
10.4.1 is in the possession of and is at the free disposal of the Receiving Party or is published or is otherwise in the public domain prior to its receipt by the Receiving Party;
10.4.2 is or becomes publicly available on a non-confidential basis through no fault of the Receiving Party;
10.4.3 is required to be disclosed by any applicable law or regulation; or
10.4.4 is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the Disclosing Party in respect thereof and who imposes no obligations of confidence upon the Receiving Party.
10.5 Survival. The obligations of the parties under all provisions of this Article shall survive the expiry or the termination of this Agreement irrespective of the reason for such expiry or termination.
11.1 Warranty. The Software is provided “as is” and Twindo only guarantees that the Software has been developed and made available in accordance with the applicable standards in the IT-sector. The Client acknowledges and agrees that the Software is provided by Twindo with no other guarantees or obligations than those provided in the Agreement.
11.2 Risk of Data Migration. In case Twindo performs any Data Migration, this is done at the sole expense and risk of the Client. Since the format of data offered for migration is in general very variable, no representation or guarantee is made regarding the quality and accuracy of such Data Migration.
11.3 Client Awareness. The Client acknowledges having been fully informed of the characteristics of the current status of the Software and declares that Twindo has completely fulfilled its duty of informing the Client with respect to the Software and its functionalities.
11.4 Disclaimer. The foregoing warranties are in lieu of all other warranties, expressed or implied, including but not limited to, implied warranties of fitness for a particular purpose and warranties of merchantability. Excepting the warranty expressly acknowledged hereunder and to the fullest extent permitted by law, Twindo hereby disclaims, and Client hereby waives all other warranties, express or implied, including but not limited to all implied warranties of fitness for a particular purpose and all implied warranties of merchantability.
11.5 Limitation of Liability. Twindo shall only be liable for any damage the Client suffers if and insofar this is caused by Twindo’s intent or gross negligence. If Twindo is liable hereunder, it can only be held liable for the direct damages resulting from or related to the execution of the Agreement. Any direct damages are limited to the lower of (a) the maximum of the amounts paid by the Client in the twelve (12) months preceding the damage arising (excl. VAT); or (b) twenty thousand euros (€20,000,-) in the aggregate.
11.6 Indirect Damages. Twindo shall never be liable for indirect damages, such as consequential, punitive, or incidental damages, which includes, but is not limited to loss of profits; loss of savings; loss of goodwill; loss of opportunity; loss due to business interruption; loss arising from the use of goods, hardware, materials, or software of the Client or a third party; or corruption, destruction, or loss of data or documents. This limitation extends to any damage arising under the use of the Software, including but not limited to the unavailability of the Software.
11.7 Reporting. No liability shall exist for damages or fines that have not been reported to Twindo in writing within thirty (30) days of their occurrence, or for damages where the Client failed to take appropriate measures to limit such damages.
11.8 Client Indemnity. The Client will fully indemnify Twindo against all costs, expenses, liabilities, losses, damages, and judgments that Twindo may incur or be subject to as a result of any of the following:
a. the Client’s misuse of the Software or any other element of the Services; or
b. the Client’s breach of the Agreement, including these Terms and Conditions.
12.1 Force Majeure. Neither party is obliged to meet any obligation, including any statutory and/or agreed guarantee obligation, if it is prevented from doing so by circumstances beyond its control. Circumstances beyond Twindo’s control include, among other things:
(i) circumstances beyond the control of Twindo’s suppliers, (ii) defects in goods, hardware, software or materials of third parties that supplier uses on client's instructions,
(iii) measures by public authorities, (iv) power failures, (v) failures of the Internet, data network or telecommunication facilities, (vi) (cyber) crime, (cyber) vandalism, war or terrorism; (vii) general transport problems; (viii) a public health crisis such as an epidemic or pandemic; (ix) a state of emergency (such as civil war, insurrection, riots, natural disasters, etc); and (x) natural disaster and/or bad weather conditions.
12.2 Dissolving the Agreement. From the moment that a force majeure situation has lasted at least 30 calendar days, both parties may dissolve the agreement in writing in whole or in part. Twindo shall not owe any (damage) compensation in a situation of force majeure, even if it has obtained any advantages as a result of the force majeure situation.
13.1 Term. The Agreement is entered into for the term agreed on by the parties in the Agreement.
13.2 Termination. These Terms and Conditions shall terminate upon termination of the Agreement in accordance with the terms of the Agreement.
13.3 Obligations Following Termination. Within 5 business days of the termination of this Agreement in accordance with this Clause 13 or the expiry of this Agreement, the Client shall uninstall or otherwise remove any means of access to the Software including, but not limited to, software supplied by Twindo for that sole purpose. Immediately following taking such action, the Client shall inform Twindo in writing that such action has been taken.
13.4 Survival. Articles 9 (Intellectual Property Rights), 10 (Confidentiality), 11 (Liability), 14 (Data Processing) and 16 (Dispute Resolution) and all other parts of the Terms and Conditions that by their nature are ought to survive the termination of the Agreement remain applicable after termination of the Agreement.
14.1 Legal Definitions. In this Clause 14, the terms “personal data”, “processing”, “data subject”, “controller”, “processor”, and “personal data breach” shall have the meanings defined in the Data Protection Legislation, and the terms “Data Processor” and “Data Controller” shall have the same meanings as “processor” and “controller” respectively. The term “domestic law” means the law of the Netherlands or a part thereof.
14.2 Data Protection Legislation. The parties hereby agree that they shall both comply with all applicable data protection requirements set out in the Data Protection Legislation. This Clause 14 shall not relieve either party of any obligations set out in the Data Protection Legislation and does not remove or replace any of those obligations.
14.3 Roles. For the purposes of the Data Protection Legislation and for this Clause 14, the Client is the “Data Controller” and Twindo is the “Data Processor”.
14.4 Details of Processing. The scope, nature, and purpose of the processing; the duration of the processing; the type(s) of personal data; and the category or categories of data subject are set out in accordance with Dutch law.
14.5 Required Consents. The Data Controller shall (without prejudice to the generality of sub- Clause 14.2) ensure that it has in place all necessary consents and notices required to enable the lawful transfer of personal data to and the lawful collection of personal data by the Data Processor for the purposes described in this Agreement and for the duration thereof.
14.6 Data Processor Obligations. The Data Processor shall (without prejudice to the generality of sub-Clause 14.2), with respect to any personal data processed by it in relation to its performance of any of its obligations under this Agreement:
14.6.1 process the personal data only on the written documented instructions of the Data Controller unless the Data Processor is otherwise required to process such personal data by domestic law. The Data Processor shall promptly notify the Data Controller before carrying out such processing unless it is prohibited from doing so by that law;
14.6.2 ensure that it has in place appropriate technical and organisational measures (as approved by the Data Controller) to protect the personal data from unauthorised or unlawful processing, accidental loss, damage, or destruction. Such measures shall be appropriate and proportionate to the potential harm resulting from such events and to the nature, scope, and context of the personal data and processing involved, taking into account the current state of the art in technology and the cost of implementing those measures. Measures to be taken are set out in accordance with Dutch law;
14.6.3 ensure that any and all persons with access to the personal data (whether for processing purposes or otherwise) are contractually obliged to keep that personal data confidential;
14.6.4 not transfer any personal data outside of the European Economic Zone without the prior written consent of the Data Controller and only if the following conditions are satisfied:
i. the Data Controller and/or the Data Processor has/have provided appropriate safeguards for the transfer of personal data;
ii. affected data subjects have enforceable rights and effective legal remedies;
iii. the Data Processor complies with its obligations under the Data Protection Legislation, providing an adequate level of protection to any and all personal data so transferred; and
iv. the Data Processor complies with all reasonable instructions given in advance by the Data Controller with respect to the processing of the personal data;
14.6.5 assist the Data Controller, at the Data Controller’s cost, in responding to any and all requests from data subjects and in ensuring its compliance with the Data Protection Legislation with respect to impact assessments, security, breach notifications, and consultations with supervisory authorities or other applicable regulatory authorities (including, but not limited to, the Dutch Data Protection Authority);
14.6.6 notify the Data Controller without undue delay of any personal data breach of which it becomes aware;
14.6.7 on the Data Controller’s written instruction, delete (or otherwise dispose of) or return all personal data and any and all copies thereof to the Data Controller on termination of this Agreement unless it is required to retain any of the personal data by domestic law; and
14.6.8 maintain complete and accurate records of all processing activities and technical and organisational measures implemented necessary to demonstrate compliance with this Clause 14 and to allow for audits, including inspections, by the Data Controller and/or any party designated by the Data Controller. The Data Processor shall inform the Data Controller immediately if, in its opinion, any instruction infringes the Data Protection Legislation.
14.6.9 The Data Processor shall not sub-contract any of its obligations with respect to the processing of personal data under this Clause 14 to another processor without the prior written consent of the Data Controller (such consent not to be unreasonably withheld). In the event that the Data Processor appoints another processor, the Data Processor shall:
i. enter into a written agreement with the other processor, which shall impose upon that other processor substantially the same obligations as are imposed upon the Data Processor by this Clause 14, which the Data Processor hereby undertakes shall reflect the requirements of the Data Protection Legislation at all times;
ii. ensure that the other processor complies fully with its obligations under that agreement and the Data Protection Legislation; and
iii. remain fully liable to the Data Controller for the performance of that other processor’s obligations and the acts or omissions thereof.
14.7 Modification. Either party may, at any time, and on at least thirty (30) calendar days’ written notice, alter this Clause 14, replacing it with any applicable data processing clauses to comply with the Data Protection Legislation or.
15.1 Relationship. Nothing in the Agreement and/or these Terms and Conditions shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between Twindo and the Client.
15.2 Assignment. The Client may not assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of Twindo, such consent not to be unreasonably withheld.
15.3 Severability. The parties agree that, in the event that one or more of the provisions of the Agreement and/or these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of the Agreement and/or the Terms and Conditions. The remainder of the Agreement and/or the Terms and Conditions shall be valid and enforceable.
15.4 Entire Agreement. These Terms and Conditions, together with the Agreement and all other documents referred to herein, embodies and sets forth the entire agreement and understanding between the parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of the Agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in the Agreement and/or the Terms and Conditions, save for any representation made fraudulently.
15.5 Modification. Unless otherwise expressly provided elsewhere in these Terms and Conditions, these terms may be varied only by a document signed by both of the parties.
15.6 No Waiver. The parties agree that no failure by either party to enforce the performance of any provision in these Terms and Conditions and/or the Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
16.1 Governing Law. The agreements between Twindo and the Client are governed by the laws of the Netherlands.
16.2 Jurisdiction. Disputes arising from the Terms and Conditions shall be submitted to the competent court located in Amsterdam, the Netherlands.
