Twilay Terms of Service
Last updated: 20th October 2020
Thanks for using the Twilay Service! Please read these Twilay terms of service (“Terms of Service”) carefully before using the Twilay.com website, application integration platform, and related services (“Service”) provided by Advanced Marketing Solutions, LLC. These Terms of Service govern your access to and use of the Twilay Service, and any updates, upgrades, modified versions, extensions, improvements and derivative works of the foregoing. Advanced Marketing Solutions, LLC is a Connecticut company located at 680 E Main Street #685, Stamford, CT 06901 and in these Terms of Service, we will reference ourselves as “Twilay” or “we”/“us”. By creating an account on the Service, accessing and/or using the Service, you irrevocably agree to these Terms of Service. If you do not agree to these Terms of Service, you may not create an account on, access or use, the Service.
“You” means the entity you represent in accepting these Terms or Service or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms of Service; (ii) you have read and understand these Terms or Service; and (iii) you agree to these Terms of Service on behalf of the party that you represent.
1. User Account Registration
1.1 Account Registration and Use License: In order to access and use all of the features of the Service, you are required to open an account (“User Account”) by registering with Twilay. When you register for your User Account you guarantee that you are above the age of 18, and must provide true, accurate, current and complete information (“Account Information”), and you agree to update the Account Information in order to ensure that it is current. Upon proper registration and opening of a User Account, and subject to these Terms of Service, Twilay hereby grants to you a non-transferable license to use the Service, until such time as either you or Twilay elect to terminate your use of the Service in accordance with these Terms of Service.
1.2 Eligibility: As an express condition of being permitted to open a User Account, you represent and warrant that you (i) have the legal capacity (including, without limitation, being of sufficient age) to enter into contracts under the law of the jurisdiction in which you reside, (ii) are not on a list of persons barred you from receiving services under U.S. laws (including, without limitation, the Denied Persons List and the Entity List issued by the U.S. Department of Commerce, Bureau of Industry and Security) or other applicable jurisdiction and (iii) are not a resident of Cuba, Iran, North Korea or Syria.
1.3 Credentials: Upon registration for a User Account, you will provide Twilay with a user ID and password to access your User Account. You are responsible for maintaining the confidentiality of your password and for all of your activities and those of any third party that occur through your User Account, whether or not authorized by you. You agree to immediately notify Twilay of any suspected or actual unauthorized use of your User Account. You agree that Twilay will not under any circumstances be liable for any cost, loss, damages or expenses arising out of a failure by you to maintain the security of your password.
2. Pricing and Payments
2.1 Trials: We may offer you a trial of some of our Services. After the trial period, we will remove your access to those Services. If you want to continue using those Services after the trial, you’ll need to pay to access the Services based on our current pricing and packaging available on our website and made available within our Services.
2.2 Subscriptions and fees: Unless you’re using a free trial we provide you, our services, require you to pay for one of the many subscriptions we offer. The subscription pricing may vary by region. The price and any other terms that are specific to your subscription are set out in the commercial materials that you accept when you agree to purchase that subscription.
2.3 No refunds or credit: Unless we’ve specifically stated elsewhere in these terms, we will not owe you any refund or credit if you or we terminate your subscription in accordance with these terms.
2.5 Upgrading and downgrading: Unless we’ve specifically stated elsewhere in these terms, we will not owe you any refund or credit if you or we terminate your subscription in accordance with these terms. Any changes in your Service usage that result in any new, increase or decrease in Fees as specified in our current packaging and pricing available in the Service or on Twilay.com, will be charged at the next billing cycle. There will be no prorating for downgrades in between billing cycles. Downgrading may cause the loss of features or capacity of your User Account. You agree Twilay will not be liable for any such loss.
2.6 Taxes for your use of our services: Our prices are stated exclusive of taxes. You’re responsible for paying all other external fees and taxes associated with your use of our services wherever levied, including value added tax, sales tax or other similar charges if they apply.
2.7 Importance of timely payments: In order to continue accessing the Services included in your subscription, you need to make timely payments based on the price of the subscription you selected. Unless your subscription order details say something else, the Fees for each subscription period are owed to us upfront – and if we have issued an invoice to you, you must pay that within the number of days set out in the invoice. To avoid delayed or missed payments, please make sure we have accurate payment information. If we don’t receive timely payments, we may suspend, or even end, your access to our Services – see the Termination and suspension section.
3. Term and Termination
3.1 Cancellation and Termination by You: You are solely responsible for properly canceling your User Account. You can cancel your User Account at any time by sending an email to firstname.lastname@example.org. Please note that we do not provide refunds for unused time in the last billing cycle.
Our subscriptions do not automatically renew. This means they will naturally end on the last day of your subscription term unless you choose to purchase another subscription for an additional duration to continue using paid Services.
3.2 Termination and Suspension by Twilay: Twilay may terminate your User Account and/or these Terms of Service at any time and for any reason upon notice to you. We may also suspend our Service to you at any time, with or without cause. If we terminate your User Account without cause, we will refund a prorated portion of your prepayment. We will not refund or reimburse you if we terminate your User Account for cause, including (without limitation) for a violation of these Terms of Service.
3.3 Effect of Termination: Once your User Account is terminated, we may permanently delete your User Account and any or all User Content associated with it. If you do not log in to your User Account for 12 or more months, we may treat your User Account as “inactive” and permanently delete the User Account and all the data associated with it. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms of Service.
4. Your Use of the Service and Restrictions
4.1 Account and Use of Service: You may use your User Account for the Service only for lawful purposes, and only in accordance with these Terms of Service.
4.2 Acceptable and Prohibited Use:
You agree to:
Comply with the Twitter Terms of Service published at htts://twitter.com/en/tos;
use the Service and Software only for your own internal business operations, and not to transfer, distribute, sell, republish, resell, lease, sublease, license, sub-license or assign the Service or use the Service for the operation of a service bureau or time-sharing service.
You shall not use or access the Service to:
advertise, promote materials or solicitation related to any product or service that is competitive with Twilay products or services, including without limitation, the Service;
In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries;
to violate or attempt to violate the security of the Service or Twilay’s or any third party’s system or network security in any way;
reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to or provided with the Service (“Software”);
modify, translate, or create derivative works based on the Service or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or Software;
use or access the Service to build or support, and/or assist a third party in building or supporting, products or services competitive to Twilay;
remove any proprietary notices or labels from the Service or Software; or
otherwise use the Service or Software outside of the scope of the rights expressly granted herein.
Transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
Promote obscene content of any kind
4.3 Your Responsibilities:
You acknowledge that (i) you exclusively are responsible for and control the timing, content, and distribution of all telephonic or electronic communications made or initiated to any person or entity in connection with your use of the Service, and (ii) any such communications are made or initiated only as a result of your actions.
You are responsible and liable for all uses of the Service under your User Account and associated User Account credentials, including without limitation, compliance with all applicable laws and regulations and third party terms.
5. Data privacy
5.2 Data Processing Addendum: If you are a paying subscriber to the Service, to the extent that Twilay processes any Personal Information (as defined in the DPA) contained in User Content that is subject to the Data Protection Legislation (as defined in the DPA), on your behalf, in the provision of the Service, the terms of the data processing addendum at Twilay.com/dpa/ (“DPA”), which are hereby incorporated by reference, shall apply and you agree to comply with such terms.
5.3 Standard Contractual Clauses: To the extent that Twilay processes any personal data subject to the European Union General Data Protection Regulations (“GDPR”) and you are the data exporter, your agreeing to these Terms of Service shall be treated as signing the Standard Contractual Clauses and their Appendices attached to the DPA for purposes of any transfer of personal data subject to GDPR in connection with the Service.
6. Terms that Apply to Your Data
6.1 Your Data: You will retain ownership of any data, information or material originated by you that you transmit through the Service (“User Content”) – for example, User Content from your accounts with Third Party Services that passes through the Service. By transmitting User Content through the Service, you hereby grant to Twilay worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, transmit, export and display User Content and to access your User Account, as reasonably necessary: (i) to provide, maintain, operate and update the Service and to provide customer support for the Service, (ii) to prevent or address service, security, support or technical issues, or (iii) as required by law.
6.2 Your Posts: The Service may include functionality that permits users to post, upload or transmit content in a manner that is intended to be viewed by other users (“Your Posts”). Your Posts exclude User Content. By submitting Your Posts to the Service, you hereby grant to Twilay a perpetual, irrevocable, royalty-free, worldwide, non-exclusive right and license, including the right to grant sublicenses to third parties, to use, reproduce, publicly display, publicly perform, prepare derivative works from and distribute Your Posts for any purpose. Twilay may exercise all copyright, publicity and moral rights, in any media, with respect to Your Posts.
6.3 Your Data Compliance Obligations: You shall be solely responsible for the accuracy, quality, content, transmission and legality of User Content and Your Posts, and any actions triggered by User Content. You represent and warrant that (i) you have obtained all necessary rights, releases and permissions to transmit User Content through the Service and for any actions triggered by User Content, post Your Posts on the Service and to otherwise have User Content and Your Posts used as described in these Terms of Service, (ii) User Content, Your Posts and their transmission, processing, posting and use as you authorize in these Terms of Service will not violate any laws or regulations, or any Third Party Services terms, and (iii) none of Your Posts will constitute obscene, pornographic, indecent, profane or otherwise objectionable material.
6.4 No Prohibited Sensitive Personal Data: In addition you may not access or use the Service to post, upload or transmit, or incorporate any data that is subject to heightened privacy and security requirements by law or regulations or applicable Third Party Services terms, including, without limitation, any financial or medical information of any nature, any sensitive personal information (e.g., government issued numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, credit card numbers, passwords and security credentials), or any special categories of personal data under GDPR.
6.5 Enforcement: Twilay reserves the right to monitor the Service and to investigate and take appropriate legal action against any party that uses the Service in violation of applicable law, these Terms of Service. Twilay reserves the right to accept, reject or modify any User Content or Your Posts but assumes no liability based on its acceptance, rejection, modification or failure to modify any User Content or Your Posts.
7. Proprietary Rights and Improving the Service
7.1 Twilay Service: The Service is made available on a limited access basis, and no ownership right is conveyed to you. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Service, including all modifications, updates, upgrades, extensions, components and all derivative works to the Service. All our rights not expressly granted under these Terms of Service are hereby retained.
7.2 Feedback: We appreciate any feedback from you about our services and may use it forever without restriction or payment to you.
7.3 Improving the Service: Notwithstanding anything to the contrary set forth herein or otherwise, Twilay will have the right to collect and analyze data and other information relating to the provision, use or performance of the Service and related systems and technologies (including information concerning the use of User Account and data derived therefrom), and to aggregate and/or de-identify all such data and information. Twilay will be free at any time to: (i) use such information and data to improve and enhance the Service; and (ii) disclose such data in aggregate or other de-identified form in connection with its business.
7.4 Trademarks: Twilay and all Twilay product names are trademarks and services marks of Twilay (collectively “Twilay Trademarks”) and third party logos and product names are trademarks and service marks of third parties (collectively “Third Party Trademarks”) and nothing in these Terms of Service shall be construed as granting any license or right to use the Twilay Trademarks without Twilay’s prior written consent or the Third Party Trademarks. You hereby grant Twilay the right to identify you as a customer of Twilay and to use your logo and/or trademark for that purpose.
8. Location of the Service and Your Use
Twilay operates or controls the operation of the Service from a cloud service located in the United States. Twilay makes no representation or warranty that all of the features of the Service, User Content or Your Posts will be available to you outside of the United States, or that they are permitted to be accessed outside of the United States.
9. Linked Third Party Services
The Service may contain links to and integrations with third party websites, applications and services (“Third Party Services”), and you agree that Twilay provides links to and integrations with such Third Party Services solely as a convenience and has no responsibility for the content or availability of such Third Party Services, and that Twilay does not endorse such Third Party Services (or any products or other services associated therewith). Access to any Third Party Services linked to the Service is at your own risk, and Twilay is not responsible for the accuracy or reliability of any information, data, opinions, advice or statements made on such Third Party Services. Your use of such Third Party Services will be subject to the terms applicable to each such Third Party Services. You may not post a link that directs users to any content or information that would constitute a violation of these Terms of Service or any terms applicable to such Third Party Services.
10. Confidential Information
While using our services, you may share confidential information with us, and you may become aware of confidential information about us. You and we both agree to take reasonable steps to protect the other party’s confidential information from being accessed by unauthorised individuals, entities or other third-parties. You or we may share each other’s confidential information with legal, governmental or regulatory authorities if required to do so, or if required by law. We may also share your information on a similar confidential basis with the other companies in our group, our advisers, auditors and financiers, and any third parties carrying out due diligence on our business. Information will not be considered confidential if the recipient of the information already knew the information and it was not subject to confidential treatment, or the information is publicly available (but not as a result of a breach of this confidentiality section).
If you are a paying subscriber to the Service, Twilay warrants to you that it will provide the Service during the applicable subscription substantially in accordance with its documentation under normal use. In the event of any breach of such warranty, your exclusive remedy will be Twilay’s re-performance of the deficient Service or, if Twilay cannot re-perform such deficient Service as warranted, you may terminate your User Account as set forth above and Twilay will refund a prorated portion of your monthly prepayment. You must notify Twilay in writing of any warranty deficiency within 10 days from receipt of the deficient Service in order to receive the foregoing warranty remedy.
OUR SERVICES AND WEBSITES ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability and indemnity
13.1 LIMITATION OF LIABILITY: OTHER THAN LIABILITY THAT WE CAN’T EXCLUDE OR LIMIT UNDER APPLICABLE LAW, OUR AND OUR AFFILIATES’ LIABILITY IN CONNECTION WITH OUR SERVICES OR THESE TERMS, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED AS FOLLOWS:
WE, OUR AFFILIATES, EMPLOYEES, AND AGENTS HAVE NO LIABILITY ARISING FROM YOUR USE OF OUR SERVICES FOR ANY LOSS OF REVENUE OR PROFIT, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF CAPITAL, LOSS OF ANTICIPATED SAVINGS, DAMAGE TO REPUTATION, LOSS IN CONNECTION WITH ANY OTHER CONTRACT, OR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL LOSS, DAMAGE OR EXPENSE (INCLUDING LEGAL COSTS).
WE AND OUR AFFILIATES ARE NOT RESPONSIBLE OR LIABLE FOR YOUR CONDUCT, ANY CONSUMER’S CONDUCT AND/OR ANY OTHER THIRD-PARTY’S CONDUCT OR USE OF OUR SERVICES, INCLUDING ANY USER CONTENT.
OUR AND OUR AFFILIATES’ TOTAL AGGREGATE LIABILITY TO YOU IN ANY CIRCUMSTANCES IS LIMITED TO THE TOTAL AMOUNT YOU PAID US FOR OUR SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE.
13.2 You indemnify us: You will pay us and each of our affiliates on demand the amount of all losses, costs (including legal costs), expenses, demands or other liabilities (whatever their nature and whether or not they are avoidable or foreseeable) that we or our affiliates incur or suffer arising out of, or in connection with:
a third-party claim against us (or any of our affiliates) relating to your use of our Services or any content you provide; and
a claim against us (or any of our affiliates) by you and/or any of your affiliates (and/or any of your or your affiliates’ officers, directors, employees, contractors, agents, shareholders) related to User Content.
Twilay may give notice to you in your User Account or to your e-mail address on record in your User Account. You are responsible for ensuring that your contact information is accurate and up to date in your User Account. If you have a dispute with Twilay, wish to provide a notice under these Terms of Service, or become subject to insolvency or other similar legal proceedings, you must promptly send written notice to Twilay at email@example.com.
15. Modifications to Terms of Service
Twilay expressly reserves the right to modify the Terms of Service at any time in its sole discretion by including such alteration and/or modification in these Terms of Service, along with a notice of the effective date of such modified Terms of Service. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you through your User Account. If you object to the updated Terms of Service, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. In all other cases, any continued use by you of the Service after the posting of such modified Terms of Service shall be deemed to indicate your irrevocable agreement to such modified Terms of Service.
16. Governing law and jurisdiction
16.1 All matters relating to the Services, Twilay.com, these Terms of Service, any agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed exclusively by and construed in accordance with the laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule.
16.2 Any legal suit, action or proceeding arising out of or related to these Terms of Service, or Services, or Twilay.com shall be instituted exclusively in the federal courts of the United States in Connecticut, or the courts of the State of Connecticut, except that we retain the right to bring any suit, action or proceeding against you for breach of any of the above-listed agreements in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. Limitation on Time to File Claims.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, ANY AGREEMENT OR THE WEBSITE OR OUR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
These Terms of Service and the policies or terms expressly referenced and incorporated into these Terms of Service constitute the entire agreement and understanding between you and us concerning the subject matter hereof. These Terms of Service supersede all prior or contemporaneous discussions, proposals and agreements between you and Twilay. If any provision of these Terms of Service is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either you or us may be implied from any actions or failures to enforce rights under these Terms of Service. These Terms of Service are intended to be and are solely for the benefit of Twilay and you and do not create any right in favor of any third party. All sections of these Terms of Service which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.