Twitch
Master Products and Services Agreement
General Terms
These General Terms (“General Terms”) set forth the general terms and conditions applicable to the Products and Services provided by Vendor to Twitch or Twitch Affiliates.
1. Statement of Work.
1.1. Statement of Work. The Products or Services provided by Vendor to Twitch or its Affiliates are specified in one or more statement(s) of work entered into by the parties (each, a “Statement of Work” or “SOW”) to which these General Terms are incorporated. Any modifications of these General Terms or the terms of any applicable Addenda made in the Statement of Work will only apply to that specific Statement of Work and not all Statements of Work entered into by the parties. For Twitch or its Affiliates, each Statement of Work is a separate obligation of the entity that executes such Statement of Work and no other entity has any obligation under such Statement of Work.
1.2. Addenda. Additional terms and conditions concerning the Products and Services provided by Vendor are set forth in the applicable addenda indicated on the Statement of Work or elsewhere in the Agreement (each, an “Addendum” and collectively, the “Addenda”).
2. Term and Termination.
2.1. Term. The term of a Statement of Work begins on the SOW Effective Date and, unless earlier terminated pursuant to these General Terms, any applicable Addenda, or the terms of the SOW, continues for the period set forth in the SOW (each, an “SOW Term”).
2.2. Termination.
a. Termination for Convenience by Twitch. Twitch may terminate any Statement of Work, or any portion thereof, with or without cause, by giving at least 30 days’ prior written notice to Vendor.
b. Termination for Cause by Twitch. Twitch may terminate one or more Statement(s) of Work: (i) if Vendor breaches a provision of the Agreement and does not cure that breach within 30 days of notice from Twitch (without the need for further notice); (ii) immediately by giving notice to Vendor, if Vendor breaches Sections 8 (Confidentiality; Privacy and Security), 11.2 (Assignment), or 11.3 (Subcontractors); (iii) if Twitch has a good faith belief that Vendor will, or Vendor has, become insolvent or become the subject of any proceeding under any bankruptcy, insolvency, or liquidation law that is not dismissed within 60 days or (iv) immediately by giving notice to Vendor if Vendor becomes subject to property attachment, court injunction, or court order that has a material adverse effect on Vendor’s operations.
c. Termination for Cause by Vendor. Subject to the terms of the applicable Addenda, Vendor may terminate this Agreement by giving notice to Twitch if: (i) Twitch materially breaches a provision of the Agreement and does not cure that breach within 30 days of receipt of notice from Vendor or (ii) if Twitch becomes insolvent or becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, which is not dismissed within 60 days.
2.3. Upon Termination.
a. Effect of Termination. Upon termination by Twitch, Twitch will only be liable for the payment of undisputed amounts based on amounts due under the Agreement for Products and Services already delivered or performed, and accepted, by Twitch prior to the effective date of termination. Vendor will provide Twitch with a pro rata refund for any pre-paid fees for Products and Services other than those already delivered or performed, and accepted, by Twitch prior to the effective date of termination.
b. Transition Assistance Services. In connection with the termination or expiration of the Agreement, Vendor will fully cooperate with and provide transition assistance to Twitch to enable and facilitate an orderly transition of the Services to Twitch or its designee. In the event of a proper termination pursuant to Section 2.2(c)(i) (Termination for Cause by Vendor), Twitch will pay Vendor for such transition assistance at the rates not to exceed any set forth in the Agreement or as otherwise mutually agreed to by the parties. For any other termination or expiration, Vendor will provide such transition assistance at no additional cost to Twitch unless otherwise expressly provided in writing.
c. Return of Twitch Property. Upon expiration or termination of the Agreement, or upon Twitch’s request, and subject to the terms of the applicable Addenda, Vendor will: (i) at Twitch’s direction, delete or deliver to Twitch all Twitch Materials, Confidential Information and other property of Twitch in its or its Personnel’s possession, custody, or control; (ii) provide Twitch with all Twitch Data in the possession, custody, or control of Vendor or its Personnel, in a format and media reasonably acceptable to Twitch, and destroy all remaining copies of such Twitch Data pursuant to the Agreement and Twitch’s written instructions; and (iii) through an officer of Vendor, certify in writing to Twitch that it is in compliance with this Section 2.3(c) (Return of Twitch Property).
2.4. Survival. Sections 2 (Term and Termination); 5 (Indemnification); 6 (Limitations of Liability and Damages); 7 (Insurance); 8 (Confidentiality; Privacy and Security); 10 (Records; Audit); 11 (General); 12 (Definitions), any term-based licenses that expressly survive expiration or termination, any perpetual licenses, and any other provisions identified in an Addendum (together with all other provisions hereof, including all Addenda, Statements of Work, and other attachments hereto, that may be reasonably interpreted as surviving termination or expiration of the Agreement) will survive the termination or expiration of the Agreement.
3. Payment; Taxes.
3.1. Payment. Vendor will submit separate invoices to Twitch for the Products and Services provided under each Statement of Work in a form reasonably acceptable to Twitch, which will include sufficient information to allow Twitch to determine the accuracy of, and methodology for, calculating the amounts billed, the date of the Statement of Work, the billing period, and a description of, and a detailed breakdown of fees attributable to, any Products or Services provided. Twitch will pay undisputed amounts following Twitch’s receipt of such complete and correct invoice: within 60 days. Twitch will make all payments according to Twitch’s then-current payment policies, which may include electronic payment. Notwithstanding any other provision of the Agreement, Twitch may offset, delay or withhold payment of any sums due and payable to Vendor as a result of any amounts owed to Twitch or for any failure of Vendor to perform in accordance with the Agreement. Except as expressly stated otherwise in a Statement of Work, each party will pay its own costs relating to the Agreement.
3.2. Taxes. Vendor may charge and Twitch will pay applicable national, state or local sales or use taxes or value added taxes that Vendor is legally obligated to charge (“Taxes”), provided that such Taxes are stated on the original invoice that Vendor provides to Twitch and Vendor’s invoices state such Taxes separately and meet the appropriate tax requirements for a valid tax invoice. Twitch may provide Vendor an exemption certificate acceptable to the relevant taxing authority, in which case Vendor will not collect the Taxes covered by such certificate. Vendor is solely responsible for correctly and properly calculating, collecting, and remitting all other taxes or fees arising (including interest and penalties) from transactions and the documentation of transactions under the Agreement. Twitch has the right to deduct or withhold any taxes that Twitch determines it is obligated to withhold from any amounts payable to Vendor under this Agreement, and payment to Vendor as reduced by such deductions or withholdings will constitute full payment and settlement to Vendor of such amounts. Throughout the SOW Term and a reasonable time thereafter, Vendor will provide Twitch with any forms, documents, or certifications as may be required for Twitch to satisfy any information reporting or withholding tax obligations with respect to any payments under the Agreement.
4. Representations and Warranties. Vendor represents and warrants that: (i) performing its obligations under the Agreement does not and will not violate any agreements it is a party to or aware of; (ii) it, and its Personnel, Products and Services do and will comply with Laws; (iii) it has obtained, secured, and maintained, and will obtain, secure, and maintain, all consents, approvals, permits, and licenses required for it to perform its obligations under the Agreement; (iv) the Deliverables, Products and Services will be provided with good and marketable title, free and clear of all liens and other encumbrances; (v) it, and its Personnel, and the Deliverables, Products and Services, do not and will not infringe, misappropriate, or otherwise violate any third party’s IPR; (vi) the Deliverables, Products and Services will comply with the Agreement and the Specifications, and such Specifications will not be reduced or diminished; (vii) it has and complies with the appropriate licenses (including any attribution requirements) to use and provide any third party software or Public Software that is embodied in or incorporated into any of Deliverables, Products or Services; (viii) it will provide the Services in a competent and workmanlike manner in accordance with the level of professional care customarily observed by highly skilled professionals rendering similar services; (ix) no Deliverable, Product or Service is subject to any license or other terms requiring that other software, documentation, information, or other materials, incorporating, incorporated into, or used with such Deliverable, Product or Service, in whole or in part, (A) be disclosed or distributed in source code form, (B) be licensed for the purpose of making derivative works, or (C) be redistributable at no charge. Additionally, to the extent applicable to Vendor, Vendor and its Personnel will abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), including prohibitions of discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, prohibitions of discrimination against all individuals based on their race, color, religion, sex, or national origin, and requirements that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability; (x) Vendor and the entities that own or control Vendor, and its financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable governmental authority; and (xi) Vendor will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any commodities, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S. Department of State, Treasury or Commerce, the European Union, or any other applicable governmental authority.
5. Indemnification.
5.1. Generally. Vendor will defend, indemnify, and hold harmless Twitch and its Affiliates, and its and their directors, officers, employees, agents, contractors, licensees, successors, and assigns (“Twitch Indemnified Parties”) from and against all Claims. “Claim” means any demand, claim, suit, action or allegation made or brought by a third party (including costs, losses, damages, and expenses (including reasonable attorneys’ fees, expert witness fees, and court costs) relating to such third-party claim) that is identified as a Claim in an Addendum or that arises from or relates to any of the following, whether actual or alleged: (i) Vendor’s actual or alleged breach of the Agreement; (ii) Vendor’s (or its Personnel’s) or the Deliverables’, Products’ or Services’ violation of Laws; (iii) personal or bodily injury, including death, or property damage caused by Vendor (or its Personnel) or the Deliverables, Products or Services; (iv) Vendor’s (or its Personnel’s) negligence, willful misconduct, or fraud; or (v) infringement or misappropriation of third-party IPR by Vendor or arising in connection with a Deliverable, Product or Service.
5.2. Procedure. Twitch will notify Vendor in writing of any Claim and permit Vendor, using mutually-agreed counsel, to defend the Claim (although Twitch’s failure to so notify Vendor will not relieve Vendor of any liability under this Section, except and only to the extent such failure materially prejudices Vendor’s ability to defend such Claims). Twitch will, on Vendor’s reasonable request and at Vendor’s expense, provide Vendor with reasonable assistance in defending the Claim. Vendor will not stipulate, admit, or acknowledge any fault or liability on the Twitch Indemnified Party’s part without Twitch’s express, prior, written consent. Vendor will not consent to the entry of any judgment or enter any settlement without Twitch’s prior written consent, which may not be unreasonably withheld. Twitch may participate in the defense of Claims at its own expense and with counsel of its own choosing. If Twitch reasonably determines that any Claim might adversely affect any Twitch Indemnified Party then, without limiting Vendor’s indemnification obligations, Twitch may take control of the defense of the Claim.
5.3. Waiver of Certain Immunities, Defenses, and Protections Relating to Injuries to Personnel. In connection with any action by Twitch to enforce Vendor’s indemnification obligations for a Claim arising out of personal or bodily injury (including death) to any Vendor Personnel, Vendor waives any immunity, defense or protection under any workers’ compensation, industrial insurance or similar Laws and assumes liability for such Claim. The foregoing sentence will not be interpreted or construed as a waiver of Vendor’s right to assert any such immunity, defense or protection directly against its own employees or such employee’s estate or other representatives.
5.4. Additional Obligations Upon Alleged Infringement. If Twitch reasonably believes that any Deliverable, Product or Service may violate any third-party IPR or Twitch’s use may be enjoined, at Twitch’s request Vendor will immediately and at its expense procure for Twitch the ability to exercise the rights granted under the Agreement and the applicable Statement of Work or replace or modify the Deliverable, Product or Service, as applicable, with a non-infringing equivalent that meets the Specifications. Without limiting any other remedies available to Twitch, if Vendor cannot perform under the first sentence of this Section, it will refund any payments received from Twitch, and Twitch will have no obligation to make any further payments, for the applicable Deliverable, Product or Service and any related Deliverables, Products or Services.
6. Limitations of Liability and Damages. Except for liability or damages arising from Vendor’s defense and indemnification obligations under the Agreement; infringement of Twitch’s IPR; Vendor’s gross negligence, willful misconduct, fraud, or violation of Law; or Vendor’s breach of Section 8 (Confidentiality; Privacy and Security) (including the NDA); (i) neither party is liable for (and the other will not seek) any special, incidental, consequential, exemplary, punitive, or other indirect damages, nor, in the case of claims by Vendor, any loss of profits, loss of revenues, or loss of business, whether foreseeable or unforeseeable, arising out of the Agreement regardless of whether liability is based on breach of contract or warranty, tort, strict liability, or otherwise, even if a party has been advised that such damages are possible; and (ii) the maximum, aggregate liability of Twitch to Vendor or to any third party for any claim relating to the Agreement is limited to direct damages incurred in reasonable reliance, in an amount not exceeding the lesser of: (A) the aggregate amount paid by Twitch to Vendor under this Agreement, or (B) $50,000.
7. Insurance. During the SOW Term and for at least two years thereafter, Vendor will maintain insurance coverage as needed to secure its obligations and potential liabilities under the Agreement. Vendor is responsible for all amounts that must be paid or retained for that insurance. Vendor’s insurance will include at least the following coverage, the limits of which may be satisfied by combining primary liability and umbrella excess liability coverage:
Coverage Type | Minimum Coverage Limits |
Commercial General Liability (including product liability) | $5,000,000 per occurrence $5,000,000 general aggregate |
Business Automobile Liability (including coverage for all owned, non-owned, and hired vehicles, and no-fault coverage where applicable) if operating a vehicle while performing Services | $1,000,000 per occurrence (injury and property damage combined) |
Workers’ Compensation (including coverage for all employer liabilities under workers’ compensation and similar Laws that may accrue for any Vendor employee, in all jurisdictions where Vendor has employees) | Statutory requirements in all jurisdictions where Vendor has employees |
Employer’s Liability | $1,000,000 |
Fidelity Bond (or similar policy covering employee dishonesty) | $500,000 per loss |
Professional Liability or Errors and Omissions (including Cyber Liability Insurance and an indemnity rider) | $1,000,000 per claim |
The insurance policies for the above must: (i) not be able to be cancelled, non-renewed, or have coverage materially reduced without at least 30 days’ written notice from the Vendor to Twitch; (ii) for Commercial General Liability and Business Automobile Liability only, name Twitch, and its Affiliates, and their respective officers, directors, employees, successors, assigns, and agents, as additional insureds; (iii) waive any insurer right of subrogation against Twitch, and its Affiliates, and their respective officers, directors, employees, agents, and contractors; and (iv) provide primary coverage, without any right of contribution from any other insurance that Twitch or its Affiliates may have. Vendor will provide certificates of all insurance coverage to Twitch at Twitch’s request. Vendor will give Twitch certificates of insurance for the above by the SOW Effective Date and at each policy renewal thereafter. Nothing in this Section, or Twitch’s actions under it, modifies any of Vendor’s obligations or liability under the Agreement.
8. Confidentiality; Privacy and Security
8.1. Confidentiality. Vendor and its representatives: (i) will protect and keep confidential the existence and terms of the Agreement (including all Statements of Work) and any other information provided by or obtained from Twitch or from any third party in connection with the Agreement that is identified as confidential or proprietary or that, given the nature of such information or the manner of its disclosure, should reasonably be considered confidential or proprietary (including all information relating to Twitch’s technology, customers, business plans, marketing activities, and finances) (“Confidential Information”); (b) will use, collect, monitor, or retain such Confidential Information only for the purpose(s) for which such information was originally disclosed and only for fulfilling its obligations under the Agreement; and (c) will return to Twitch or destroy, at Twitch’s election, all such Confidential Information promptly upon the termination or expiration of the Agreement in accordance with Section 2.3(c). All such Confidential Information remains Twitch’s exclusive property, and Vendor will have no rights to such information except as expressly provided in this Section. Vendor will enforce equivalent confidentiality requirements on its Personnel who perform any works in relation to the Agreement.
8.2. Restrictions. Vendor may collect, use, store and retain only the Twitch Data expressly authorized under the applicable SOW solely as necessary for Vendor to perform the Services or provide the Deliverables or Products in accordance with this Agreement and such SOW. Vendor (including its Affiliates and their Personnel) will not: (i) otherwise collect, monitor, use or retain any Twitch Data; (ii) collect Twitch Data by means other than those authorized in this Agreement or the applicable SOW (iii) monitor, collect, use or store any personally identifiable information or personal data (including from the Hosted Services or System) other than on behalf of, and as directed by, Twitch; or (iv) transfer, process, store, or access Twitch Data outside the United States of America unless otherwise specified in an SOW.
8.3. Security. Vendor will comply with Twitch’s information technology and data security policies, processes, procedures, standards, and methodologies made available to Vendor by Twitch, including those required by the Data Security Addendum located at: www.twitch.tv/p/legal/msa/security.
8.4. Data Protection. If Vendor is processing, storing, transferring, or accessing Twitch Data in connection with its provision of Products or Services to Twitch, Company will serve as a data processor for Twitch. The Data Processing Addendum (located at: www.twitch.tv/p/legal/msa/dpa) is hereby incorporated by this reference and sets forth the terms and conditions under which Twitch Data may be collected or processed by Vendor, and is an integral part of the Agreement. In case a provision of the Agreement conflicts with the Data Processing Addendum, then with respect to the parties’ obligations related to the collection or processing of Twitch Data, the terms of the Data Processing Addendum will prevail.
9. Compliance with Policies. Vendor will comply with Twitch / Amazon’s:
(i) Code of Business Conduct and Ethics located at: https://ir.aboutamazon.com/corporate-governance/documents-charters/code-business-conduct-and-ethics?c=97664&p=irol-govConduct; and (ii) Supply Chain Standards located at: https://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=200885140, as either may be modified by Twitch or Amazon.
10. Records; Audit. During the SOW Term and for at least three years after, Vendor will, in accordance with generally accepted accounting principles, keep all usual and proper records relating to the Agreement, including any records required by an Addendum. During this period, upon prior written notice to Vendor, Twitch may audit or inspect Vendor’s records to verify compliance with the terms of the Agreement. Such audit will be conducted at Twitch’s cost and expense and will be performed during Vendor’s normal business hours. If any audit reveals a breach of the Agreement by Vendor or overpayment by Twitch, then, without limiting Twitch’s other rights and remedies, Vendor will promptly reimburse Twitch for the costs and expenses associated with such audit, and if there was an overpayment, Vendor will promptly reimburse Twitch the amount of the overpayment. In addition, at Twitch’s request, Vendor will certify in writing to Twitch that it is in compliance with this Agreement.
11. General.
11.1. Publicity. Without prior written authorization of such use by a Vice President of Twitch, (i) Vendor will not issue press releases or publicity that specifically or generally relates to Twitch or the Agreement, (ii) Vendor will not specifically or generally reference Twitch or any of its Affiliates in any brochures, advertisements, client lists, or other marketing or promotional materials, and (iii) Vendor will not use any trade name, trademark, service mark, logo, commercial symbol, or any other IPR of Twitch or any of its Affiliates in any manner.
11.2. Assignment. Vendor may not transfer or assign the Agreement, or any rights or duties under it, directly or indirectly (e.g., by merger, consolidation, other corporate reorganization, or a transfer or sale of a controlling interest), by operation of contract, law, or otherwise, except with Twitch’s express prior written consent. Any attempted transfer or assignment that violates this Section is a material breach of the Agreement and is void. Subject to this Section, the Agreement will bind and benefit the parties’ successors and permitted assigns.
11.3. Subcontractors. Vendor will not subcontract or delegate any of its obligations under the Agreement to any subcontractors, affiliates, or delegates (“Subcontractors”) without Twitch’s prior written consent. Notwithstanding the existence or terms of any permitted subcontract or delegation, Vendor remains responsible for the full performance of its obligations under the Agreement. The terms and conditions of the Agreement are binding upon Vendor’s Subcontractors. Vendor: (i) will ensure that its Subcontractors comply with the Agreement; and (ii) is responsible for all acts, omissions, negligence, and misconduct of its Subcontractors.
11.4. Independent Contractors. Each party is an independent contractor to the other and has no authority to act on behalf of, or bind, the other, and the Agreement does not create any other relationship between the parties (e.g., employment, partnership, or agency).
11.5. Governing Law. The Agreement is governed by the laws of the State of California (without regard to any conflicts of law or other principles that would require the application of another body of law). Any dispute arising under, in connection with, or incident to the Agreement or about its interpretation must be resolved exclusively in the state or federal courts located in San Francisco, California. The parties irrevocably submit to those courts’ venue and jurisdiction. The parties waive all defenses of lack of personal jurisdiction and forum non-conveniens. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
11.6. Notices. All notices under the Agreement will be: (i) in a Signed writing; (ii) deemed given when received; (iii) sent by delivery service, messenger, electronic mail, or registered or certified mail (postage prepaid, return receipt requested); (iv) in English; and (v) addressed and sent, with any required copies, as provided on the applicable SOW. Any party may change its notice address by giving the other party notice of the change in accordance with this Section.
11.7. Interpretation. The Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise: (i) lists of examples following “e.g.,” “including,” “for example,” or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely”; (ii) uses of the words “any” or “all” are deemed to include “any and all”; (iii) except as otherwise specified in a Statement of Work, all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (iv) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at the specified URLs; (v) a writing is Signed; and (vi) a party’s choices or determinations under the Agreement are in its sole discretion. The section headings of the Agreement are for convenience only and have no interpretive value.
11.8. Remedies. Except as otherwise set forth in the Agreement, all rights and remedies specified under the Agreement are in addition to any other remedies available at law or in equity. Vendor acknowledges that any material breach of Sections 5 (Indemnification), 8 (Confidentiality; Privacy and Security) (including any breach of the NDA) or 11.1 (Publicity) by Vendor would cause Twitch irreparable harm for which Twitch has no adequate remedies at law and, therefore, Twitch is entitled to seek specific performance or injunctive relief for any such breach without posting a bond or proving actual damages and without prejudice to any other remedies available to Twitch.
11.9. Entire Agreement. The Agreement is the parties’ entire agreement regarding the subject matter hereof and merges and supersedes all related agreements, oral understandings, representations, prior discussions, and letters of intent with respect to the subject matter of the Agreement. Only authorized officers of Twitch or its Affiliates may enter into agreements on their respective behalves and no other Personnel may bind Twitch or its Affiliates, as applicable. In particular, no shrink-wrap, click-wrap, click-through, click-accept, or other online terms or polices (“Vendor Additional Terms”) provided with any Products or Services hereunder will be binding on Twitch, even if use of such Products or Services requires an affirmative “acceptance” of those Vendor Additional Terms before access or use is permitted. All such Vendor Additional Terms will be of no force or effect and are be deemed rejected by Twitch in their entirety. NEITHER PARTY WILL BE BOUND BY, AND EACH SPECIFICALLY OBJECTS TO, ANY PROVISION THAT IS DIFFERENT FROM OR IN ADDITION TO THIS AGREEMENT (WHETHER PROFFERED VERBALLY OR IN ANY QUOTATION, INVOICE, SHIPPING DOCUMENT, ONLINE TERMS AND CONDITIONS, ACCEPTANCE, CONFIRMATION, CORRESPONDENCE, PROPOSAL, OR OTHERWISE), UNLESS SUCH PROVISION IS SPECIFICALLY AGREED TO IN A WRITING SIGNED BY BOTH PARTIES_._
11.10. Counterparts. The Agreement is effective only if Signed by both parties, which signature requirement is, without limitation, a material term, and may be executed in counterparts, or by electronic means to accurately send images, or by electronic signature service but all of which together will constitute one and the same instrument. The parties may use standard business forms or other communications but the use of such forms is for convenience only.
11.11. Modification or Waiver. Twitch reserves the right to change the terms of these General Terms or Addenda at any time and such changes will apply to any Statement(s) of Work entered into after the date of such revision. Any waivers granted hereunder are effective only if recorded in a writing Signed by the party granting such waiver.
11.12. Severability. If a court of competent jurisdiction finds any part of the Agreement unenforceable, the Agreement will be deemed modified to the extent necessary to make it enforceable and the rest of the Agreement will be fully enforced to effect the parties’ intent.
11.13. Non-Exclusive. The Agreement: (i) is non-exclusive; (ii) does not limit or preclude Twitch from entering into similar agreements with third parties; and (iii) does not require Twitch to use or purchase Vendor’s Products or Services. Vendor acknowledges that Twitch may now have, or in the future may develop or receive, information that is the same as, or similar to, information provided by Vendor without having breached the Agreement. Nothing in the Agreement: (a) prevents Twitch from using, for any purpose and without compensating Vendor, information retained in the memory of Twitch’s Personnel who have had access to information provided by Vendor; (b) prohibits Twitch from independently developing any products or services similar to, or competitive with, Vendor’s products or services; or (c) obligates Twitch to restrict the scope of employment of Twitch’s Personnel.
11.14. Continuing Performance. During any uncured breach of the Agreement by a party, Vendor will continue to fulfill all of its obligations under the Agreement, including all Product and Service delivery obligations, unless directed otherwise by Twitch in writing.
11.15. Order of Precedence. If there is a conflict or inconsistency between or among these General Terms, an Addendum, or a Statement of Work, then the order of precedence is as follows: (i) these General Terms; (ii) the applicable Addenda; and (iii) the Statement of Work, in each case unless the lower priority document explicitly states that it is intended to modify the conflicting terms of the higher priority document. In the event of a conflict or inconsistency between Statements of Work, the terms of the later-executed Statement of Work will govern.
12. Definitions. The following terms (whether used in the singular or plural) used in the Agreement have the respective meanings set forth below.
12.1. “Affiliate” means an entity that a party directly or indirectly controls, is controlled by, or is under common control with such party.
12.2. “Agreement” means the Statement of Work, these General Terms, and any applicable Addenda.
12.3. “Deliverables” means all items or materials provided by or on behalf of Vendor (or that Vendor is obligated to provide) to Twitch under a Statement of Work, including all Work Product as described in applicable Addenda.
12.4. “Delivery Date” means the date for delivery as stated in a SOW, email, or other written communication from Twitch to Vendor.
12.5. “Documentation” means all manuals, instructions, specifications, notes and other documents and materials, whether in electronic or paper form, relating to the use, operation or maintenance of the Software, Hosted Services, or other Services that Vendor provides to Twitch or otherwise makes available, together with all enhancements, modifications and amendments to those documents.
12.6.“IPR” means any patents, copyrights, trademarks and service marks, mask works, trade secrets, moral rights, rights of publicity and personality, rights of privacy, and any other intellectual property or proprietary rights arising at any time under the Laws of any jurisdiction.
12.7.“Law” means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, ordinances, and requirements of any government authority (federal, state, local, or international) having jurisdiction.
12.8. “Personnel” means employees, representatives, suppliers, contractors, subcontractors and agents of a party.
12.9. “Products” means any products provided or required to be performed or provided by Vendor under the Agreement, including Hardware and Software as further described in the applicable Addenda and Statement(s) of Work.
12.10. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including software, documentation, or other material licensed or distributed under any of the following licenses or distribution models or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License; (ii) The Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the Sun Industry Standards License (SISL); (vii) the BSD License; and (viii) the Apache License.
12.11. “Services” means any services provided or required to be performed or provided by Vendor under the Agreement, including Hosted Services (and related Systems), maintenance and support services, and Professional Services as further described in the applicable Addenda and Statement(s) of Work.
12.12. “Signed” means when hand-signed (i.e., using a pen) or signed via an electronic signature service by a duly authorized representative of the signing party.
12.13. “Software” means: (a) the software programs licensed pursuant to an SOW or otherwise made available by Vendor to Twitch; and (b) any software and firmware contained within or supplied with or for use with the Hardware (examples of the latter include drivers), all associated Documentation, and all future versions and generations of that software and firmware together with all enhancements, modifications, upgrades, updates, bug fixes, and new versions to such software and firmware.
12.14. “SOW Effective Date” means the date when a Statement of Work has been Signed by both parties, or the date expressly identified as the SOW Effective Date in the applicable Statement of Work.
12.15. “Specifications” means, with respect to any Service, Product or Deliverable, (i) the specifications, requirements and functionality set forth in the Agreement, including as referenced in the applicable Addenda and Statement of Work or otherwise agreed by the parties in writing; (ii) any request for proposals issued by Twitch for the provision, implementation, and maintenance and support of the Products or performance of the Services and any proposals provided by Vendor in response to the request for proposals, as supplemented by written correspondence of Vendor to clarify such proposal, but only to the extent acceptable to Twitch; and (iii) to the extent not inconsistent with (i) or (ii), any specifications, requirements and functionality set forth in documentation provided to Twitch by Vendor or otherwise made available by Vendor, and in any Vendor publications, marketing, or advertising for any Service or Product or any other materials provided or otherwise made available to Twitch or its Affiliates by Vendor.
12.16. “Twitch Data” means, individually and collectively: (a) all information and data relating to Twitch or its Affiliates and (b) all data, records, files, content and information, including personal information, in any form or format, acquired, accessed, collected, received, stored, or maintained by Vendor, its Affiliates, or its or their Personnel from or on behalf of Twitch or its Affiliates, or otherwise in connection with the Agreement, or derived therefrom, even if it has been de-identified or otherwise anonymized.
12.17. “Twitch Materials” means any materials or information that Twitch or its Affiliates own or license from a third party.