Twingate Beta End User License Agreement
Last Updated: January 1, 2020
Twingate Inc. (“Twingate”) licenses this software product to you subject to the terms contained in this Twingate Beta End User License Agreement (“EULA” or “Agreement”). Read this Agreement carefully before installing, copying, or using this software and any accompanying documentation (“Software”). By installing, copying, or using the Software, you agree to be bound by the terms of this Agreement.
1. Beta Program
The Software is made available to you in connection with a beta program that your organization participates pursuant to a Twingate Beta Testing Agreement (or similar document covering the beta testing of Twingate software and services) (“Organizational Beta Testing Agreement”). You may only use the Software if you are authorized by such an organization to install or use the Software, and agree to comply with the terms of the Organizational Beta Testing Agreement as they apply to the Software (including, without limitation, any confidentiality obligations).
2. Software License
Subject to the terms of this Agreement, Twingate grants you a limited non-exclusive, non-transferable license to use and copy, during the term of this Agreement, the Software solely as necessary to enable your use of the Twingate services described in the Organizational Beta Testing Agreement. Other than the rights expressly specified in this Agreement, no other rights in the Software are granted to you.
3. Term and Termination
This Agreement terminates upon termination of the Organizational Beta Testing Agreement. Twingate may terminate this Agreement upon written notice. Upon termination, you will immediately delete any copies of the Software you possess and, upon Twingate’s request, confirm in writing that they have been deleted. Sections 3-9 of this Agreement will survive termination of this Agreement.
4. Proprietary Rights
Twingate retains sole ownership of all intellectual property rights in the Software. Certain portions of the Software may be subject to open source or free software licenses (“Third Party Software”). Such Third Party Software is not subject to the terms of this Agreement but is licensed under the terms and conditions of the license that accompanies such Third Party Software. You agree to prevent any unauthorized copying of the Software.
5. Beta Warranty Disclaimer
To the extent permitted by applicable law, the Software is provided “as-is.” Twingate disclaims all other warranties, express or implied, including any warranty of merchantability, fitness for a particular purpose, noninfringement and any warranties arising out of the course of deal or usage in trade.
6. Acknowledgement of Beta Status of Software
You acknowledge that the Software is provided for beta testing and evaluation purposes only and that you should not use the Software for the processing of any live or production data. You acknowledge and agree that: (a) the Software has not been commercially released by Twingate, (b) the Software may not operate properly, be in final form or fully functional; (c) the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Software fully functional; (e) the information obtained using the Software may not be accurate; (f) use of the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Twingate is under no obligation to release a commercial version of the Software; and (h) Twingate has the right to unilaterally abandon development of the the Software, at any time and without any obligation or liability to you. You acknowledge and agree that you should not rely on the Software for any reason. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Software. You will be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of your use of the Software.
7. Limitation of Liability
To the extent permitted by applicable law, the liability of Twingate and its affiliates to you arising out of or in connection with this Agreement or the use of the Software, or for any error or defect in the Software, or for the provision of technical support installation, training or other services in connection therewith, however caused, and on any theory of liability, including contract, strict liability, negligence or other tort, shall be limited to direct damages not to exceed the greater of: (a) any fees paid to Twingate hereunder; and (b) $100. To the extent permitted by applicable law, in no event will Twingate or its affiliates be liable for any indirect, incidental, special, punitive or consequential damages, including damages for loss of profits, loss of business revenue, or data corruption or loss, even if advised of the possibility of such damages. These limitations will apply notwithstanding the failure of the essential purpose of any remedy. The limitations of liability set forth in this Agreement reflect the allocation of risk negotiated and agreed to by the parties. The parties would not enter into this Agreement without these limitations on liability.
8. Export Restrictions
You may only use the Software if you are not barred under any applicable laws from doing so. You represent that you are not: (a) located in a country or region subject to trade sanctions or embargoes imposed, administered, or enforced by the United States or Switzerland; or (b) an individual or entity on the U.S. Department of Commerce’s Denied Persons List or Entity List, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders List, or any other sanctions or restricted persons lists maintained by the United States or Switzerland. You will not, directly or indirectly, export, re-export, transfer or otherwise make available the Software: (1) to any person or entity on any of the foregoing lists, or (2) in violation of any restrictions maintained by the U.S. Department of Commerce, the U.S. Treasury Department Office of Foreign Assets Control, or any other U.S. or foreign governmental agency or authority.
This Agreement constitutes the entire agreement between the parties and supersedes any and all prior and contemporaneous agreements, communications and understandings with respect to the evaluation of the Software and shall be construed in accordance with the laws of the State of California (excluding its conflict of law rules). Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal courts located in the Northern District of California or state courts located in San Mateo County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of the Agreement will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under this Agreement must be in writing.