Terms of Service
Thank you for viewing Twist! Twist is a digital barter exchange brought to you by Subject Matter Experts, Inc. (“Twist”, “we”, “our”, “us”, or “this is us”) subject to the following terms and conditions (“Terms of Service”). To be a list or trade on Twist, you must agree to these Terms of Service. Please read them carefully. If you object to any provision of these Terms of Service, please immediately discontinue all use of Twist and cancel your account.
“Twist” means all of the services we offer relating to Twist transactions, including but not limited to our barter exchange services, our third party record keeping services for barter transactions, and our alternative currency services, whether such services are provided via our website at https://www.twist.com, which references these Terms of Service, or other communications media, such as email, and any feature, media, or software that is part of such website or communication.
MINIMUM AGE REQUIREMENT
To access or use Twist, you must be either:
• 18 years of age or older and have the requisite power and authority to enter into these Terms of Service; or
• 13 years of age or older and have the permission and supervision of a parent or legal guardian who has reviewed and agreed to these Terms of Service.
Any other persons are not permitted to use Twist.
TWIST IS SOLELY A FACILITATION AND RECORD KEEPING SERVICE
Twist is solely intended to organize and facilitate trading of goods and services using Twist Credits (see below) and/or United States currency (“U.S. Dollars” or “USD”) between Twist members by providing a trading forum and third-party record-keeping services. We are not parties to, make no representations, promises, or warranties as to, and have no responsibility or liability with respect to any transactions, communications, interactions, disputes, or any other relations whatsoever (collectively, "relations") between you and any other member, person, or organization, even if initiated or conducted via Twist. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research or due diligence with respect to your relations with others.
MEMBERSHIP AND FEES
We offer Membership Plans to buyers to access Twist . Changes to our Membership Plans are effective after we provide you with thirty (30) days' written notice at the email address you provide in connection with your membership account. Our most recent Membership Plans may also be accessed at any time at https://www.twist.com.
You agree to pay us for any fees (“Twist Fees”) applicable to your Twist Membership Plan, including any initiation fee, monthly fee, and transaction fee stated in your Membership Plan. Unless otherwise specified, all Twist Fees are in U.S. Dollars and all charges will be made in U.S. Dollars. Any applicable sales or other taxes are additional to the stated Twist Fees. Currency exchange settlements and foreign transaction fees are based on your agreement with your credit card or other payment method provider. We will provide you a monthly statement reflecting your Twist account activities and all Twist Fees due. You agree to pay us for Twist Fees due on or before the fifteenth (15th) day of the month following the transaction (the "due date"). All amounts are payable in cash, check, ACH funds transfer, or by your pre-authorized MasterCard, Visa, Discover, American Express credit card or other payment method expressly authorized by Twist, however, if your payment is not received by the due date or within ten (10) days of your monthly statement, whichever is later, we may charge it to your specified credit card and you authorize us to do so. We may suspend all trading privileges of any member whose account is not paid in full by the due date and until the account is brought current. A late payment fee of $5 USD or 1.5% (whichever is higher) of the gross amount of Twist Fees due per month may be assessed, to the fullest extent permitted by law, at month end if your Twist Fees are not paid in full. Additionally, we may charge a $40 USD fee for each instance that your credit card or pre-authorized payment is declined or your check returned for insufficient funds. You acknowledge and agree that these terms reflect the additional costs we will incur in order to bill and collect your accounts. Your monthly statement will be deemed accurate unless you notify our accounting department of any discrepancy in writing within fifteen (15) days of the statement being received. You must promptly contact us if you do not receive any monthly statement, and you agree to visit Twist.com as needed to review your monthly statements.
Except as required by law, all Twist Fees are nonrefundable. Payments and purchases may not be canceled by you, except as required by law. However, we reserve the right to refuse or terminate any purchase or attempted purchase at any time in our sole discretion. Note that if you authorize a payment transaction with your credit card, debit card or other payment method, but your charge is rejected for any reason, there may be a hold on your use of that transaction amount for several days while your card company processes the charge reversal. Similarly, if you authorize an ACH funds transfer, but your transfer is rejected, it may take one or more days for those funds to be available again in your ACH account.
You may not transfer, sell, or assign in any manner your Twist membership or any benefit arising under these Terms of Service without our prior written approval.
TRANSACTIONS THROUGH Twist
When a Twist member buys your product or service, the buyer's payment of Twist Credits is deposited into your Twist account (subject to your compliance with the selling procedures set forth in Section 5(f) below). Once you have Twist Credits in your account, you may begin purchasing with Twist. When you buy products or services through Twist, your account will be debited the amount of your purchase.
Your Twist purchases are limited to the amount of Twist Credits available in your account plus any credit amount of Twist Credits available to you. In addition, your use of any Twist Credits in your account is conditioned on your payment of all Twist Fees when due, and you pledge all Twist Credits in your account at any time to us as collateral for all unpaid Twist Fees. If at any time we, in our sole discretion, deem you to be a credit risk, we may require you to prepay Twist Fees in order to spend Twist Credits in your account.
You acknowledge and agree that we have the right and power to regulate and control the number of outstanding Twist Credits within the Twist exchange system and to extend Twist Credits to any member, on terms and conditions acceptable to us and at our sole discretion.
All transactions are subject to our audit and verification and, in the case of inaccuracies, we may debit or credit your account, without notice, as a result of such error. We are not the guarantor of any Twist Credits.
Purchases and sales made with Twist Credits are taxable events for municipal, state/provincial and federal tax purposes. All Twist revenue (including Twist Credits) is treated as income and is taxable in the year in which the sales occur. Sales tax, when applicable, is included in the total Twist transaction amount. As the seller, you are responsible for collecting sales tax in Twist Credits on Twist sales and remitting taxes to the applicable government authorities in U.S. Dollars. Sales tax expenses can be recouped when you spend your Twist Credits within the exchange, provided that purchases made are taxable purchases.
When you join Twist, federal law requires us to give you a Form W-9, Request for Taxpayer Identification Number and Certification, or a similar form for you to certify under penalty of perjury that your taxpayer identification number (generally a social security number or an employer identification number) is correct and that you are not subject to backup withholding. You agree to complete this form truthfully and accurately and return it to us. We may withhold tax up to the amount of any U.S. Dollars paid to you or deposited in your account and any scrip or credit issued to you (and converted to U.S. Dollars). In most cases, Twist Exchange income you receive is not subject to withholding, however, federal law may require backup withholding in certain circumstances to ensure that income tax is collected on this income.
For each tax year you are a Twist member, we will send you a Form 1099-B showing the value of U.S. Dollars, property, services, credits, or scrip you received from Twist transactions. Ultimately, the declaration and reporting of all applicable local, municipal, state/provincial and federal taxes, including but not limited to appropriate sales and excise taxes, resulting from your Twist transactions rests solely with you. We encourage you to consult a CPA or tax professional to determine the best way to record and account for Twist transactions. Please review the Tracking & Taxes page of our website to learn more about tracking and reporting transactions on your Twist account.
You may use Twist Credits available in your account to set up sub-accounts, also known as “Twist Consumer Accounts,” (collectively “Sub-Accounts”) to reward, compensate, or gift to third parties, such as your employees, family, or friends. Sub-Accounts are separate from, but appended to, your account and allow others to reap the benefits of Twist. You will pay transaction fees (which will be charged to the primary account) on any Twist Credits transferred from your account into a Sub-Account at the time of transfer. However, you will not be charged monthly maintenance fees on Sub-Accounts or transaction fees on Sub-Account purchases. Once deposited, funds cannot be transferred back to your primary account without a request from the Sub-Account holder. The Sub-Account holder should closely track his/her Twist spending to ensure all purchases, recorded and pending, do not exceed the available Twist Credits deposited in his/her Sub-Account. Sub-Accounts are not allowed lines of credit and cannot carry a negative balance. You as the primary account holder are responsible for all charges, deficit, and/or balances due on any and all Sub-Accounts appended to your account. Any transfer of Twist Credits by you to a Sub-Account may be treated as income to the Sub-Account holder and is generally taxable in the year in which the transfer occurs. You represent, warrant, and covenant that you will comply with all applicable laws relating to Sub-Accounts, including but not limited to employment, wage, labor, and tax laws. If you so elect, you are responsible for reporting all taxable transfers to Sub-Accounts to the applicable government authorities, and we will not supply a Form 1099B to the IRS or the Sub-Account holder.
Buying through Twist
To make a Twist purchase, you must (1) have a valid, current membership or a valid, current Sub-Account with sufficient funds for your intended purchase, and (2) identify yourself to the seller as a Twist buyer before making the purchase.
Although we are continually soliciting new members, products, and services, we make no guarantees regarding the availability of any specific product or service through Twist. Based on supply and demand, certain items may be available on a limited basis only. We are not responsible if you cannot find a specific product or service.
As part of our services we may make referrals or recommendations, or promote particular products and services to you. Such guidance is solely informational and you may choose not to follow it. You should exercise the same diligence entering into a Twist transaction as you would an ordinary transaction in U.S. Dollars. We shall have no responsibility or liability for the quality, timely delivery, or warranty of any goods or services you buy through Twist.
You have fifteen (15) days to dispute any Twist transaction on your account. After fifteen (15) days, all transactions are deemed valid.
Selling through Twist
To make a Twist sale, you must (1) have a valid, current membership, and (2) properly document the sale. Any Twist sale may be reversed if disputed by the buyer. In the event of a dispute, it is your responsibility as seller to provide proof, to our satisfaction at our sole discretion, of the sale and the buyer’s agreement to purchase. It is recommended that you keep adequate sales records for at least three (3) years from the sale date or any longer period required by applicable law. We will have no responsibility or liability for reversed sales, and it will be your sole responsibility to collect from the buyer.
You may negotiate individual transactions for a partial payment of U.S. Dollars with prior written approval by Twist. However, absent such approval, you will furnish all goods and services, including without limitation all materials and labor, for 100% Twist Credits (no U.S. Dollars payment) at your normal prevailing prices.
Although we are continually soliciting new members, products, and services, we make no guarantees regarding the availability of Twist buyers for your specific product or service. Based on supply and demand, certain items may be abundantly available. Twist is an open marketplace; you do not have any priority or exclusivity against other Twist sellers of similar or identical products or services to yours. We are not responsible if you cannot find buyers.
We may make referrals or recommendations, or promote particular buyers to you as part of our services. Such guidance is solely informational and you may choose not to follow it. You should exercise the same diligence entering into a Twist transaction as you would an ordinary transaction in U.S. Dollars. You are fully responsible for satisfying yourself that the buyer, in fact, holds a valid Twist account or has authority to use the Twist account of another.
If you wish to temporarily stop selling your goods or services through Twist (e.g., if you are too busy), you may request your account to be placed in standby status, but only if: (1) your account is not in a deficit position (i.e., amounts purchased exceed amounts sold), (2) you give thirty (30) days' written notice to us of said request, and, (3) we have not suspended your trading privileges. Placing your account on standby status does not affect your monthly Twist Fees; you are still responsible during standby status for any Twist Fees applicable to your Twist Membership Plan.
Transaction Fees and Non-Circumvention
Twist transactions fees apply to each and every Twist transaction, including each and every sale of goods or services you make to other Twist members or affiliated exchanges arising out of your use of Twist, and are calculated in U.S. Dollars based on the gross amount of the transaction, including Twist Credits, U.S. Dollars, and any applicable taxes.
Attempting to circumvent the Twist system to avoid transaction fees is prohibited. We reserve the right to charge transactions fees based on the value of any transaction between or among Twist members and/or affiliated exchanges if we determine, in our sole discretion, that any member is attempting to circumvent the Twist system or otherwise avoiding payment of fees to Twist.
Direct Trading Prohibited
Direct trades between members are prohibited. If direct trades occur, the transaction shall be processed as though it was an exchange transacted in accordance with these Terms of Service. In addition to the standard transaction fee, we may, at our discretion, also charge each party a penalty in U.S. Dollars equivalent to 20% of the total transaction value. We may also, at our discretion, terminate membership of any party to such a trade.
Any time your Twist Credit account is in a deficit position (i.e., amounts purchased exceed amounts sold, without prior credit arrangements), you may be required to compensate us in U.S. Dollars, on demand and at our sole discretion. In the event that your Twist Credit balance remains in a deficit position for more than thirty (30) days after we have notified you in writing of such deficit, we have the right to convert such deficit balance from Twist Credits to U.S. Dollars at a ratio of one to one. We may take any action to secure such payments if deemed necessary. We reserve the right to adjust balances of U.S. Dollars with your Twist account(s) and you agree and acknowledge that we may use your pre-authorized credit card accounts to pay any deficit due and owing.
Extension of Credit
Upon your request, we may elect, in our sole discretion, to extend credit to you in the form of Twist Credits. At any time and in our discretion, such credit may be adjusted, revoked, or deemed due (by converting the Twist Credit deficit to U.S. Dollars at a ratio of one to one) upon notice to you. You authorize us to make whatever credit investigation we deem appropriate and to exchange with third parties, as we deem necessary in our sole discretion, any information received in the course of such investigation. We may request reports from credit reporting agencies. If you ask whether a credit report was requested, you will be informed, and if we have received a credit report, you will be given the name and address of agency that supplies the report.
Twist PROPRIETARY RIGHTS AND GRANTS
Title and Copyright in Twist IP
It is hereby understood and agreed that, except as provided in Section 7 below, we own all rights, title, and interest, including, without limitation, all copyrights, in and to the Twist website at https://www.twist.com, any other Twist branded or co-branded websites or mobile applications, any other Twist publications, and the Twist® service mark and any other trademarks or services marks owned by us (collectively, "Twist IP"), and any copies thereof, regardless of the media or form in which Twist IP or copies thereof may exist. Except as expressly provided herein, you do not acquire any rights, title or interest to Twist IP.
License to You
Subject to your payment of all applicable fees, we grant you a limited, revocable, non-exclusive, non-transferable license to use Twist IP, solely in object code format as to any software, solely for your personal use and on the express condition that you accept and comply with each provision of these Terms of Service. We do not transfer title to Twist IP to you. This license does not include any resale or commercial use of Twist IP. You agree that: (i) you will not copy, distribute, or make derivative works of Twist IP in any medium without our prior written consent; (ii) you will not alter or modify any part of Twist IP other than as may be reasonably necessary to use Twist IP for its intended purposes; (iii) you will not reverse engineer, decompile, disassemble, or try to access any Twist IP software source code and (iv) you will otherwise act in accordance with the Terms of Service and in accordance with all applicable local, state, and federal laws. When Twist IP requires or includes downloadable software, such software may be offered under a separate license, and there may be provisions in that license that expressly override some of these terms.
You acknowledge and agree that substantial components of Twist and Twist IP, including but not limited to components of our website accessible only to members, are highly specialized, not generally known in our industry, and constitute trade secrets. Therefore, you covenant and warrant that during the Term of these Terms of Service, and for twelve (12) months thereafter, you shall not (directly or indirectly, on behalf of yourself or a third party): (i) approach, interview, recruit or otherwise solicit, induce or encourage any Twist member to terminate or otherwise cease his or her membership with Twist; or (ii) solicit or divert any Twist member to use any other barter exchange or other competitor of Twist. If any provision of this 6(c) is deemed by a court or arbitrator of competent jurisdiction to exceed the time, geographical or other limitations prescribed by applicable law, then such provision(s) shall be deemed modified, narrowed, construed and enforced to the fullest extent permitted by applicable law consistent with the parties’ express intent set forth herein.
“Content” means any and all text, images, photos, audio, video, location data, hyperlinks, programs, and all other forms of data or communication, including Twist member reviews. To “Post” means to post, submit, or transmit to, through, or in connection with Twist. “Your Content” means Content that you Post. “User Content” means Content that users of Twist Post and includes, without limitation, Your Content and Content Posted by other Twist users.
Responsibility for User Content
All User Content is the sole responsibility of the person or persons who Post it and is non-confidential. You agree that we do not control, and are not responsible for, User Content. We make no representation or warranty as to the quality, accuracy, reliability, or intellectual property status of any User Content. Under no circumstances will we be responsible for any loss, damage, or other liability arising from User Content, including but not limited to User Content that is defamatory, trade libelous, or otherwise tortious.
You alone are responsible for Your Content. You assume all risks associated with Your Content, including (i) anyone's reliance on its quality, accuracy, reliability, or intellectual property status, and (ii) any disclosure in Your Content of information that makes you personally identifiable.
Editing User Content
While we are not responsible for User Content, we reserve the right (though not the obligation), in our sole and absolute discretion and for any reason, to screen, refuse to Post, reject, modify, remove, filter or otherwise edit (collectively, "edit") any User Content, including, without limitation: (i) any User Content that we believe violates any of these Terms of Service, (ii) profanity, obscenities, threats of physical violence or damage to property, and (iii) private financial information such as social security numbers and credit card information. Under no circumstances will we be responsible for any loss, damage, or other liability arising from our editing User Content or our failure to edit User Content, including but not limited to User Content that is defamatory, trade libelous, or otherwise tortious.
Posting Harmful Content
Posting any Content in violation of any municipal, state, federal, foreign or other applicable regulation or law is prohibited. You agree not to Post or elsewhere publish any Content that: (i) violates any applicable law or regulation; (ii) is defamatory or trade libelous; (ii) is incorrect, not truthful, threatening, harassing, stalking, vulgar, obscene, pornographic, profane, racially, ethnically or sexually discriminatory in any way, or that otherwise violates any right of another or is deemed unacceptable in our sole discretion; (iv) encourages any conduct prohibited by the Terms of Service; (v) restricts or inhibits any other user from using Twist; (vi) impersonates any person or entity, or directly or indirectly attempts to gain unauthorized access to any portion of Twist or any computer, software, or data of any person, organization or entity that uses or accesses Twist; (vii) provides or creates links to external sites that violate the Terms of Service; (viii) is intended to harm, exploit, solicit, or collect personally identifiable information of any individual under the age of 18 in any way; (iv) invades anyone’s privacy by attempting to harvest, collect, store, or publish private or personally identifiable information without their knowledge and willing consent or distributes or contains viruses or any other technologies that may harm Twist or any of its members; (v) is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner to Post the material and to grant us all of the license rights granted herein; or (vi) contains or promotes an illegal or unauthorized copy of another person’s copyrighted work.
License to Us
You retain ownership in Your Content, including any intellectual property rights you hold in Your Content. When you Post Content, you grant to us an irrevocable, perpetual, transferable, sub-licensable, non-exclusive license, to be exercised by us at our sole and absolute discretion throughout the universe on or through any media and using any technologies, whether now known or later devised, to (i) edit, copy, publicly display, publicly perform, publish, broadcast, retransmit, distribute, create derivative works of, and otherwise to exercise and exploit, whether commercially or otherwise, any and all proprietary rights in and to that Content and (ii) copy, publicly display, publish, broadcast, retransmit, and distribute your name or username in association with that Content. By Posting Content, you represent and warrant that you have the necessary rights to grant this license. We reserve the right to ban your use of Twist if you violate another’s intellectual property rights.
You also grant to us, during the term of this agreement, a transferable, sub-licensable, non-exclusive license, to be exercised by us at our sole and absolute discretion throughout the universe to use your name, trademarks, service marks, trade names, or logos that you may adopt from time (collectively, “Your Marks”) so that we may advertise or promote your products or services or Twist in general. Your Marks as used on Twist will be accessible to web search engines (such as Google®) that create publicly available searchable indices of websites and materials.
You will not knowingly or negligently Post any Content that contains viruses or other computer programming defects. You are advised to make sure each computer you use to access Twist has updated anti-virus software protecting it.
You will not directly or indirectly use Twist for chain letters, junk mail, spamming, or any use of distribution lists to any person who has not given specific permission to be included in such a process. "Spam" or "Spamming" means any attempt to use a mailing list for the purpose of sending to a person or persons an unsolicited message, including any advertisements.
Reuse of Content
"Twist Content" means all Content (including User Content) on or in the Twist website at https://www.twist.com or any Twist IP. You will not collect, aggregate, copy, harvest, duplicate, display or make derivative use of Twist Content, or use data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by us in writing. Notwithstanding the foregoing, we grant the operators of web search engines permission to use spiders to copy materials from Twist for the sole purpose of creating publicly available searchable indices of the materials. We reserve the right to revoke these exceptions in specific cases.
USERNAME AND ACCESS
To access the services available through the Twist website at https://www.twist.com, you must create a username and password. You are responsible for maintaining the confidentiality of your username and password, if applicable, and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your username or password. You will not, and you will not assist, encourage, or enable others to, attempt to gain unauthorized access to Twist, or computer systems or networks connected to Twist, through hacking, password mining, or any other means.
We reserve the right to refuse service, terminate your account, or ban you from the Twist website, without notice or liability of any kind, and in our sole discretion.
RULES OF CONDUCT
Please review our Rules of Conduct at https://www.twist.com/rules-of-conduct/, which also govern your use of Twist, to understand how we expect members to treat one another. Our most recent Rules of Conduct may be accessed at any time on the https://www.twist.com home page. Our Rules of Conduct are explicitly incorporated into these Terms of Service, and by agreeing to these Terms of Service you expressly represent and warrant that you have reviewed and understood our Rules of Conduct to your satisfaction.
CHANGES TO THE AGREEMENT
We may modify these Terms of Service from time to time, for example, to reflect changes to the law or changes to our services. We recommend you look at the Terms of Service regularly. Changes to our Terms of Service are effective after we provide you with at least one (1) week's written notice to the email address or mailing address you provide in connection with your membership account. Changes will not apply retroactively, and you shall have the right to accept or reject the modified Terms of Service, provided that if you reject the modified Terms of Service, please immediately discontinue all use of Twist and cancel your membership. By continuing to use Twist after the effective date of any change to these Terms of Service, including accessing the Twist website at https://Twist.com, you agree to be bound by the rules contained in the most recent version of these Terms of Service. The most recent version of the Terms of Service may be accessed at any time on the https://www.twist.com home page.
COMPLAINTS AND INVESTIGATION
We encourage you to let us know if you believe another user has violated the Terms of Service, but we reserve the right to investigate and take appropriate action at our sole discretion. We are under no obligation to enforce the Terms of Service on your behalf against another user.
Notice and Procedure for Making Claims of Copyright Infringement
If you believe that your work has been copied and posted on the Twist website in a way that constitutes copyright infringement, please send the following information to our Copyright Agent identified below:
• A description of the copyrighted work that you claim has been infringed;
• A description of where the allegedly infringed material is located on the Twist website (for example a link to the page that contains the material);
• A written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• Your address, telephone number, and email address so that we can contact you;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
• A statement by you, made under penalty of perjury, that the information in your report is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. A statement by you comprised of the foregoing points is referred to herein as the “Notice.”
Our designated Copyright Agent to receive Notice of claimed infringement is:
[Note: Be sure to file the appropriate DMCA agent notice with the Copyright Office.]
Please note: This procedure is exclusively for notifying us that your copyrighted material has been infringed. Any other feedback, comments, requests for technical support, and other communications should be directed to Twist user services at trade@Twist.com.
DISCLAIMER REGARDING THIRD PARTY SITES
The Twist website at https://www.twist.com, and any other Twist websites or mobile applications, may include links to or search results or data from other websites or applications (each, a "Third Party Site"). We do not control or endorse any Third Party Site. You agree that we are not responsible for the availability or contents of such Third Party Sites. You use Third Party Sites at your own risk.
As used in this Section, “we,” “our,” or “us” expressly includes Subject Matter Experts, Inc. and/or our officers, directors, managers, employees, partners, contractors, affiliates, subsidiaries, agents, attorneys, web developers, technical support/maintenance providers, distributors, advertisers, licensors, sublicensees, and assigns, or any person or entity involved in creating, producing, or distributing Twist and/or Twist IP.
TO THE FULLEST EXTENT PERMITTED BY LAW WE GRANT NO WARRANTIES TO YOU, EXPRESS OR IMPLIED, BY STATUTE, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY AS TO QUALITY, MERCHANTABILITY, SUITABILITY OR PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, authenticity, or any warranty that operation of Twist will be uninterrupted, always available, or error-free, or will meet your requirements, or that any defects in Twist will be corrected, WHICH WARRANTIES ARE SPECIFICALLY EXCLUDED.
Twist is solely intended to facilitate the buying and selling of goods and services between Twist members using Twist Credits. Twist Credits are simply another method of payment. All Twist transactions are entered into solely between Twist members. We are not parties to, make no representations, promises, or warranties as to, and have no responsibility or liability with respect to any transactions, communications, interactions, disputes, or any other relations whatsoever (collectively, "relations") between you and any other member, person, or organization, even if initiated or conducted via Twist. You expressly assume the risk of any relations arising from or related to Twist that you enter into. You shall be solely responsible for exercising your own due diligence, to your personal satisfaction, in connection with your use of Twist.
Twist, including Twist IP and all materials and information included therein, is furnished “as is” and with all faults. You expressly assume all risk resulting from any virus, downloaded material, harmful component, or through any use of Twist or any site or server through which Twist is available, including, without limitation, at https://www.twist.com. You shall be solely responsible for the accuracy and transmission of all data entered, and for any damage that results from or is in connection with your use of Twist.
We reserve all rights not expressly granted to you under these Terms of Service. We may modify or discontinue any feature or functionality of Twist, or suspend or terminate Twist altogether, at any time and for any reason.
LIMITATION OF LIABILITY
The limitation of liability is to the maximum extent permitted by applicable law. As used in this Section, “we,” “our,” or “us” expressly includes Subject Matter Experts, Inc. and/or our officers, directors, managers, employees, partners, contractors, affiliates, subsidiaries, agents, attorneys, web developers, technical support/maintenance providers, distributors, advertisers, licensors, sublicensees, and assigns, or any person or entity involved in creating, producing, or distributing Twist and/or Twist IP.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES, LOSSES, OR CLAIMS, whether arising in contract, tort, or otherwise, and INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (including, without limitation, damages for loss of business profits, business interruption, loss or corruption of business information or other data, cost of cover, or any other pecuniary loss) ARISING OUT OF THE USE OF, PARTICIPATION IN, OR INABILITY TO USE Twist, OR THE VIEWING, DISTRIBUTING, COPYING, RELIANCE UPON, OR OTHER USE OF ANY CONTENT, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF THE ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS (INCLUDING, BUT NOT LIMITED TO, UNAUTHORIZED USERS, OR “HACKERS”) OF Twist.
You acknowledge that your Membership Plan fee amounts reflect this allocation of risk. In any case, our entire aggregate liability amount, if any, shall be limited to the transaction fees applicable to the transaction giving rise to your damages, losses, or claims, unless your damages, losses, or claims did not arise from a particular transaction, in which event our entire aggregate liability amount, if any, shall be limited to the total Membership Plan fee amount you actually paid to us during the twelve (12) month period preceding the date when we were given notice of the claim.
TERM AND TERMINATION
The Terms of Service shall continue for as long as you use Twist, or until terminated by you or us, whichever occurs first. You or we may terminate your membership upon thirty (30) days written notice to the other party. In addition, we may immediately freeze your member account, suspend your trading privileges, and/or terminate your membership if: (1) we have received two or more complaints about you for poor performance, for attempting to charge in excess of your industry or retail prices, or for overpricing in any form; (2) you have engaged in direct trades or committed fraud against us or any Twist member; (3) you are charging U.S. Dollars without approval; (4) you are not following and abiding by these Terms of Service, including your payment obligations; (5) your account is inactive for twelve (12) months; (6) you are insolvent, file a petition under the United States Bankruptcy Code, or make an assignment for the benefit of creditors; or, (7) for any other reasonable cause.
Upon termination of your membership, all Twist Credits in your account must be spent within sixty (60) days on products and services available through Twist and you may stay active for said sixty (60) days and spend the balance.
Upon termination of your membership, any deficit in your account and any outstanding balance due to us must be paid in full within thirty (30) days, either in products or services deemed acceptable by us or in U.S. Dollars, at our sole election. Upon expiration of these thirty (30) days, any outstanding balance due must be paid immediately in U.S. Dollars. Sections 7, 15, 16, 18, 20, and 21 of these Terms of Service and any other provision that may reasonably be interpreted as being intended by the parties to survive this Contract’s termination, as well as all obligations under these Terms of Service and pursuant to the Rules of Conduct arising from or relating to any trade transaction, shall survive termination of this agreement.
In consideration of being permitted to use Twist, you agree to defend, indemnify, and hold harmless Twistchange, Inc., and/or our officers, directors, managers, employees, partners, contractors, affiliates, subsidiaries, agents, attorneys, web developers, technical support/maintenance providers, distributors, advertisers, licensors, sublicensees, and assigns, from any claim or demand, including reasonable attorneys’ fees, expert witness fees, and court costs, made by any third party due to or arising out of Your Content (regardless of whether or not we edit or approve it) or your use of Twist, any breach by you of the Terms of Service, or any violation by you of any rights of another, including but not limited to your (1) failure to complete a transaction after a Twist transaction voucher has been signed or your designated Twist account manager has processed the transaction at your or the other party’s request; (2) failure to properly perform services for another member; (3) failure to deliver goods that conform to a contract with another member; (4) improper pricing; and (5) your breach of any representation, warranty, and/or covenant by in these Terms of Service. In the event of our payment, loss, expense, or crediting of your account which arises out of any transaction between you and another member, we shall be subrogated to all the rights, powers, privileges and remedies of you against any other member to the extent of the amount of such payment, loss, expense, or crediting of your account. You shall execute all papers required by us and render all necessary assistance, other than pecuniary aid, to enable us to secure the right granted in this paragraph.
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms of Service. Subject Matter Experts, Inc. is not the agent of any member, whether acting as a buyer or as a seller. We are responsible only for commitments made in writing by only a duly authorized corporate officer of Subject Matter Experts, Inc., and not verbal or written commitments made by account executives, trade brokers, other representatives of Subject Matter Experts, Inc., or any other person whatsoever.
Notwithstanding the foregoing, you and individuals signing for or on behalf of you shall all be jointly and severally responsible and liable for any and all purchases, fees, and obligations arising under these Terms of Service. Each individual signing on behalf of an entity (e.g., corporation, limited liability company, and partnership) agrees to be personally liable, jointly and severally, for the full performance by entity under these Terms of Service. You agree, upon our request (to be exercised at our sole discretion), to provide a personal guarantee, in a form provided by us, from any individual signing on behalf an entity.
GOVERNING LAW AND JURISDICTION
These Terms of Service shall be exclusively interpreted, construed, and enforced in all respects in accordance with the laws of the State of California (U.S.A.) without reference to its choice of law rules. FOR ANY CLAIM BROUGHT BY EITHER PARTY, YOU Irrevocably CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS LOCATED WITHIN OR SERVING SAN FRANCISCO COUNTY, CALIFORNIA.
Except as explicitly stated otherwise, legal notices shall be served on Subject Matter Experts, Inc.’s designated agent for service of process (in our case) or to the email address or mailing address you have designated on your account (in your case). Notice to you shall be deemed given twenty-four (24) hours after the date of emailing or three (3) days after the date of mailing, as the case may be.
These Terms of Service contain the entire agreement and understanding of the parties relating to the subject matter herein and supersede all prior agreements, writings, commitments, discussions, and understandings between them. You acknowledge and agree that no reliance is placed on any representation anywhere made that is not expressly contained in these Terms of Service. In the event of any conflict between any provision set forth in any other Twist materials (including our website at https://www.twist.com) and these Terms of Service, the provisions of these Terms of Service shall control. These Terms of Service, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Except as provided in Section 10 above, no modification of or amendment to the Terms of Service, nor any waiver of any rights under the Terms of Service, shall be effective unless in writing. If any provision of the Terms of Service is held by a court of competent jurisdiction to be invalid or unenforceable, then only that provision shall be modified to reflect the parties' intention or eliminated to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect and enforceable. Any failure on our part to exercise or enforce any right or provision of the Terms of Service does not constitute a waiver of such right or provision, and does not waive our right to act with respect to a subsequent or similar breach or breaches. These Terms of Service shall be construed within their fair meaning and no inference shall be drawn against the drafting party.
In any action or proceeding between or among you and us at law or in equity with respect to the collection of any Twist Fees or charges payable (whether in U.S. Dollars or in Twist Credits) under these Terms of Service, and including any arbitration, appeal, contempt proceeding, bankruptcy proceeding, and any action or proceeding to enforce and/or collect any judgment or other relief granted, whether or not such action or proceeding is compromised or is prosecuted to final judicial determination (collectively "Litigation"), the unsuccessful party to the Litigation shall pay to the prevailing party, in addition to any other relief that may be granted, all costs and expenses of the Litigation, including without limitation, the prevailing party's reasonable attorneys' fees and expenses. "Attorneys' fees and expenses" includes, without limitation, paralegals' fees and expenses, attorneys' consultants' fees and expenses, expert witnesses' fees and expenses, and all other expenses incurred by the prevailing party's attorneys in the course of their representation of the prevailing party in anticipation of and/or during the course of the Litigation, whether or not otherwise recoverable as "attorneys' fees" or as "costs" under applicable state law; and the same may be sought and awarded in accordance with applicable state procedure as pertaining to an award of contractual attorneys' fees. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
Please confirm your agreement to these Terms of Service by completing one of the following:
• Create an online user account at https://www.twist.com and, when prompted, confirm your acceptance of these Terms of Service, or
• Sign the attached Acknowledgement of Acceptance of Terms of Service and return it to us email at email@example.com.
Acknowledgement of Acceptance of Terms of Service
By signing below, I confirm that:
• I have been provided with the Twist Membership Terms of Service (updated April 7, 2016);
• I have read and understood the Twist Membership Terms of Service (updated April 7, 2016) to my personal satisfaction; and
• I hereby accept and agree to be bound by Twist Membership Terms of Service (updated April 7, 2016).
Signature of Authorized Signatory
INFORMATION YOU PROVIDE
Some of our services require you to provide personal information or sign up for a user account. The amount and type of personal information we gather depends on the nature of your interaction with our Website, but the types of personal information we collect generally are names, home addresses and/or other postal addresses, email addresses, telephone numbers, fax numbers, usernames, passwords, credit card information, social security numbers, and federal tax ID numbers. In each case, we collect such information to fulfill the purpose of your interaction with us. You may always review and make changes to your personal information by emailing your review request to firstname.lastname@example.org. And you can always refuse to supply personal information, with the caveat that it may prevent you from engaging in certain Website activities or features.
We also may request information from users through surveys or contests. Participation in these surveys or contests is completely voluntary and you therefore have a choice whether or not to disclose this information. Survey information will be used for purposes of monitoring or improving the use and satisfaction of the Twist Network. The users’ personally identifiable information obtained from surveys is not shared with any third parties.
INFORMATION WE RECEIVE ABOUT YOU
Like most online service operators, we may collect information about your use of our Website. This information may include your internet protocol (IP) address, unique device identifier, browser type, language preference, time zone setting, operating system, platform, access date and time, time spent on our Website or a Website page, URL clickstream (e.g., website(s) visited before our Website) and cookie data (see below).
HOW WE USE INFORMATION WE COLLECT
We use the information we collect, including personal information and non-personal information, to (i) operate, maintain, and improve our Website, our products, or our services, (ii) deliver products or services that users request or ask for; (iii) provide customer support; (iv) respond to comments and questions or contact users at their request; (v) send users transaction information, including confirmations, invoices, notices, and alerts; (vi) inform users about promotions, events, and news related to products, services, and features; (vii) process and deliver contest entries and rewards; (ix) keep internal records; (x) combine user information with other personal information about user from other sources; (xi) investigate, deter, and protect against fraudulent, unauthorized, or illegal activity; (xi) analyze your use of our Website, our products, and our services; (xii) offer personalized marketing or suggestions to you, including via plug-ins or third party sites; and (xiii) contact you for market research purposes. We may store or process your information on servers located outside of your home country; by using our Website, you consent to the transfer of such information to them.
You may opt out of receiving promotional, event, news, and/or marketing communications at any time by emailing your opt-out request to email@example.com.
INFORMATION WE SHARE
Generally, we disclose your personal information only to (i) our employees, affiliates and agents that need to know such information to process it on our behalf or to provide services available on our Website, and that have agreed not to disclose it to others, and (ii) to the IRS or other governmental authority to the extent required by law. However, we may also disclose your information, including personal information and non-personal information, in certain other circumstances, as described below.
From time to time, we may provide non-personally identifying information (e.g., non-personal information or personal information with your name and any other personally identifying information removed) with third party analytic services, to assist us in operating, maintaining, and improving our Website, our products, or our services. We may also share aggregated non-personally identifying information with our investors and partners or publicly, e.g., by publishing a report on trends in the usage of our Website.
If we believe in good faith that disclosure of your information is (i) legally required in response to a subpoena, court order, or other governmental request, and/or (ii) legally required or reasonably necessary to protect our property or rights, or those of third parties or the public at large, we will disclose the information.
If Subject Matter Experts, Inc. is involved in a merger, acquisition, or asset sale, or in the unlikely event that Subject Matter Experts, Inc.goes out of business or enters bankruptcy, user information may be one of the assets that is transferred or acquired by a third party. By using our Website, you acknowledge and agree that such transfers may occur, and that any acquirer of Subject Matter Experts, Inc.may continue to use your personal information as set forth in this policy.
We will not rent or sell your personal information to anyone.
PROTECTING YOUR INFORMATION
We take reasonable measures to protect against the unauthorized access, use, alteration, or destruction of personal information (e.g. encryption, passwords, physical security), however, it remains possible that third parties may unlawfully intercept or access transmissions or private communications and may abuse or misuse your personal information that they collect from our Website. Although we work hard to protect your privacy, we cannot guarantee that your personal information or private communications will always remain private.