Customer Agreement (September 2020)
This is an archived version of the Customer Agreement which is no longer in effect. View the current version of the Customer Agreement.
Version Date: September 3, 2020
This Customer Agreement (“Agreement”) governs your access to, and use of, any Twingate-branded products and services provided to you by Twingate (“Services”). The “Effective Date” of this Agreement is the earlier of the date you enter into this Agreement or the date you first access the Services.
You may enter into this Agreement in a variety of ways, including by executing this Agreement separately, executing an Order Form that indicates your acceptance of this Agreement, or clicking an “I accept” button (or any similar button) that indicates your acceptance of this Agreement.
If you are entering into this Agreement on behalf of an entity, you must have the necessary authority to enter into this Agreement on behalf of that entity before proceeding. In such a case, you represent that you are authorized to bind that entity to this Agreement and subsequent references to “Customer,” “you,” and “your” refer to that entity.
1. DEFINITIONS
In this Agreement:
“Admin Account” means a User Account with administrative rights or permissions.
“Affiliate” means any means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
“API” means application programming interface.
“Applicable Data Protection Laws” means all worldwide data protection and privacy laws and regulations applicable to the processing of any personal information or data contained in the Customer Data.
“Beta Service” means a Service, or a feature of a Service, that is designated or presented to you as alpha, beta, experimental, pilot, limited release, developer preview, non-production, evaluation, provided prior to general commercial release, or similar.
“CCPA” means the California Consumer Privacy Act of 2018.
“Customer”, “you”, and “your” each refer to the individual or entity entering into this Agreement and receiving the Services.
“Customer Data” means data that you or your Users transmit to the Services.
“DPA” means the Data Processing Addendum located at https://twingate.com/legal/dpa.
“Fees” means all amounts payable by you for Services under an applicable Order Form.
“Intellectual Property Rights” means all worldwide intellectual property rights available under applicable law, including rights with respect to patents, copyrights, trademarks, trade dress, moral rights, trade secrets, know-how, and databases.
“Order Form” means any order form (including an online order or purchase), statement of work, or similar document you enter into with Twingate that is issued under and made subject to the terms of this Agreement.
“Personal Data” has the meaning given to such term (or a substantively equivalent term such as personal information or personally identifiable information) under the Applicable Data Protection Laws.
“Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or wider measure applicable to a party’s products, services, or to a party, relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes, or similar restrictive measures.
“Software Updates” means updates, upgrades, bug fixes, patches, and other error corrections to the Software.
“Twingate,” “we,” “our”, and “us” each refer to Twingate Inc., a Delaware corporation.
“Twingate Mark” means a Twingate trademark, service mark, logo, or other mark or trade dress.
“Twingate Materials” means visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the Services.
“Twingate Policies” means any Twingate policies regarding the Services (excluding any privacy policies and privacy notices) and located at https://twingate.com/legal.
“USD” means United States dollars.
“User” means an employee, contractor, or agent of you or your Affiliate that you authorize to use the Services in a manner permitted by this Agreement.
“User Account” means an account assigned to a User that can be used to access the Services.
“User Terms” means the User Terms of Service located at https://twingate.com/terms/user.
2. SERVICES
2.1. Provision of Services. Twingate will provide the Services to you in accordance with this Agreement, including any Order Forms.
2.2. Software. Twingate may provide certain software to you as part of the Services (“Software”). Twingate hereby grants to you a revocable, non-exclusive, non-transferable (except pursuant to Section 15.2 (Assignment)), and non-sublicensable license to install, copy and use the Software solely as necessary to use the Services and in accordance with the Agreement and all other Twingate documentation. Your license to the Software will end upon the termination of your right to use the applicable Services. Some Software may contain open source or third party software which may have additional or different terms regarding such Software’s use.
2.3. Restrictions. Unless otherwise expressly permitted in writing by Twingate, you will not (and will not allow a User or other third party to):
(a) lease, sell, resell or use for timesharing or service bureau purposes, the Services;
(b) interfere with, disrupt, alter, or modify any Services, or create an undue burden on the Services or the networks or services connected to the Services;
(c) engage in abusive or excessive usage of the Services, which usage is significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability or functionality of the Services. We will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to levels that are in accordance with Twingate Policies;
(d) use any framing techniques to enclose any Twingate Mark or Twingate Materials (defined below) or use any meta tags or other “hidden text” using the Twingate Marks;
(e) introduce unauthorized software or automated agents or scripts into the Services so as to create multiple accounts, or generate automated searches, requests or queries;
(f) use any method (whether manual or automated) to extract or scrape data from the Services;
(g) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the binary code portions of the Software by any means whatsoever, except to the extent this restriction is prohibited by law;
(h) perform or publish any benchmark tests or analyses relating to the Services;
(i) purchase, access, or use the Services for the purpose of building or improving a competitive product or service, or for any other competitive purpose;
(j) circumvent or attempt to circumvent any limitations that Twingate imposes on your account in accordance with this Agreement (such as account suspensions for non-payment);
(k) probe, scan, or test for vulnerabilities in the Services or any other Twingate system or network;
(l) use the Services for any unlawful purposes or activities;
(m) use the Services to transmit any code, agents, software, or links to such materials with the intent to do harm (such as viruses, worms, Trojan horses, and malware);
(n) permit your Users to share User Accounts or access credentials to User Accounts; or
(o) use the Services in a way that would subject Twingate to any industry-specific regulations. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with Twingate that permits you to do so.
2.4. User Accounts. You may allow Users you designate to access and use the Services, subject to their acceptance of the User Terms and any limitations agreed to by the parties. Each User Account may only be allocated to and used by a single User. The Services are not intended for Users under the age of 16 and you represent and warrant that no Users will be under the age of 16. You are responsible for ensuring that your Users’ use of the Services comply with the User Terms and this Agreement. We may suspend, deactivate, or replace a User Account, if we reasonably determine that a User Account may have been used for an unauthorized purpose.
2.5. Software Updates. Twingate may occasionally provide Software Updates. You may receive a notice of such Software Updates and we recommend that you install them at your earliest convenience. All Updates will be deemed to be subject to the terms of this Agreement. Twingate will not be liable for failure of the Services to operate effectively or correctly in the event you do not install the Software Updates in a timely manner.
2.6. Third-Party Services. You may be able to integrate the Services with a third-party service not provided by Twingate (such as a third-party service that uses an API) (“Third-Party Service”). Third-Party Services are not Twingate services, so Twingate does not support or warrant them. If you choose to use a Third-Party Service, you acknowledge that such third-party service may access, use, disclose, provide, modify, or delete Customer Data in accordance with its functionality, and agree that Twingate will not be responsible for any such actions.
2.7. Suspension of Services. Twingate may, from time to time, temporarily suspend Customer’s access to the Services or any component thereof: (a) for maintenance; (b) to address any emergency security concerns; or (c) if required to do so by a governmental or regulatory authority or as a result of a change in applicable law.
2.8. Changes to the Services. Twingate continually changes and improves the Services. Twingate will provide you with prior written notice if Twingate makes a change to the Services resulting in a material decrease in core functionality used by Twingate’s general customer base.
2.9. Managed Subdomains. Twingate permits Customers to specify a subdomain of a Twingate-managed domain (“Subdomain”) to be associated with their Customer account. You acknowledge that you have no ownership rights with respect to Subdomains, and Twingate may, in its sole discretion, modify the name of a Subdomain assigned to you at any time (for example, to remove profanity or address a trademark infringement claim). Before doing so, Twingate will endeavor to provide you with a reasonable opportunity to select a different Subdomain name. You will not use any profanity or other inappropriate terms in Subdomains.
2.10. Twingate Policies. You will comply with the Twingate Policies. All Twingate Policies are incorporated into this Agreement by this reference.
2.11. Unauthorized Use. You will promptly notify Twingate if you become aware of any actual or suspected unauthorized use of or access to the Services.
3. SUBSCRIPTIONS & PAYMENT TERMS
3.1. Subscription Term & Renewals. Services provided to you on a subscription basis (“subscriptions”) will be provided for the duration specified on the Order Form (or other sign up process) for that subscription (“Subscription Term”). Unless otherwise agreed, each of your subscriptions will automatically renew for periods equal to the initial Subscription Term for that subscription, and you will be charged at our then-current rates until you cancel your subscription through the billing page accessible through certain Admin Accounts, or until either party provides written notice of non-renewal to the other party at least 30 days prior to a renewal date. You are responsible for canceling your subscription, regardless of whether you receive any notice from Twingate about its renewal.
3.2. Fees. Customer will pay to Twingate all Fees when due. Except as otherwise specified in this Agreement or prohibited by applicable law, payment obligations are non-cancelable and fees paid are not refundable (including for any unused portion of a Subscription Term). Unless otherwise specified, all monetary amounts on an Order Form are in USD.
3.3. Payment Terms. Payment terms are typically specified on an Order Form. If not otherwise specified on an Order Form, the following payment terms will apply: (a) all Fees will be paid by you in USD; (b) if the billing method we agree is by invoice, invoices are due within 30 days of the invoice date; and (c) Fees will be invoiced in full by Twingate upon execution of the applicable Order Form (including for multi-year subscriptions) and upon renewal.
3.4. Overdue Payments. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable law but in no event more than 1.0% per month.
3.5. Card Payments. If the billing method we agree is by credit or debit card (“Payment Card”), you: (a) represent that you are authorized to use such Payment Card; (b) authorize us to charge your Payment Card on a periodic basis for the Fees when due, including upon sign up for paid Services and upon renewal; (c) agree to keep your Payment Card details valid and current; and (d) agree to pay any processing fees that are charged by third-party payment processors or Payment Card issuers. If your Payment Card is declined when we attempt to charge it, we may try to charge it again at a later time. If we do not receive payment, we may suspend or terminate your paid Service subscription.
3.6. Price Changes. We may change the Fees that we charge for the Service, at any time in our sole discretion, provided that we will give you at least 30 days’ prior written notice of such changes and that any such changes will not take effect earlier than your next renewal date, if any.
3.7. Taxes. Unless otherwise stated, our Fees do not include any taxes, levies or duties of any nature, including value-added, sales, use, or withholding taxes, or similar government fees or taxes assessable in any jurisdiction (collectively, “Taxes”). You are responsible for paying any Taxes associated with your purchases, except those assessable against Twingate based on our income, property, or employees. Unless you provide us with evidence of an exemption, we will invoice or charge you for such Taxes and you agree to pay such Taxes.
3.8. Withholding Tax. If you are required by law to withhold any Taxes from your payments to Twingate, you must provide Twingate with an official tax receipt or other appropriate documentation to support such payments.
4. FREE TRIALS & BETA SERVICES
4.1. Free Trials. If you receive a free trial of the Services (including participating in a free proof of concept), you may only use those Services for the duration of that trial for the purpose of evaluating the desirability of purchasing the Services. Unless otherwise specified in an Order Form, either party may cancel a free trial before it ends by providing at least 1 business day’s written notice to the other.
4.2. Beta Services. If you choose to receive Beta Services, you agree to comply with any written requirements provided by Twingate regarding those Beta Services. Beta Services are provided for testing and evaluation purposes only and are not intended for use in production environments, with sensitive data, or with mission critical systems. You acknowledge and agree that: (a) Beta Services are not ready for commercial release, may not operate properly and may contain errors; (b) Twingate is under no obligation to release a commercial version of the Beta Services and may unilaterally abandon development of Beta Services without liability to you; and (c) that you use Beta Services at your own risk. You are solely responsible for maintaining and protecting all data and information that is processed by Beta Services. 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 Beta Services.
5. INTELLECTUAL PROPERTY
5.1. Twingate Intellectual Property. As between you and Twingate, Twingate retains ownership of the Services, the Twingate Materials, and all Intellectual Property Rights and other proprietary rights related to them. No licenses or rights are granted to you by Twingate other than as expressly provided for in this Agreement. You may not remove or alter any copyright, trademark or other notices or proprietary markings appearing within the Services and Software provided to you. Except as permitted by any brand and trademark use policies or rules that Twingate publishes, this Agreement does not grant you any right to use Twingate’s trademarks or brand elements.
5.2. Customer Intellectual Property. As between you and Twingate, you retain ownership of the Customer Data and all Intellectual Property Rights and other proprietary rights related to them. You grant Twingate and its Affiliates a worldwide, royalty-free, non-exclusive license to use, host, copy, transmit, modify, display, and distribute Customer Data for the limited purposes of Twingate providing, maintaining, and improving the Services, and exercising its rights and fulfilling its obligations under this Agreement and applicable law. You represent and warrant that: (a) you have all necessary rights to provide Customer Data to Twingate; and (b) Customer Data and its transfer does not violate any applicable law or regulations, or infringe any third-party right, including any intellectual property or other proprietary right.
5.3. Statistical Usage Data. Twingate owns the statistical usage data derived from the operation of the Services, including performance results for the Services (“Usage Data”). Twingate may use the Usage Data to optimize and improve the Services or otherwise operate Twingate’s business; provided that if Twingate provides Usage Data to third parties (other than to third party service providers for the purposes of receiving services from such service providers), such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or any User to any third party.
5.4. Publicity. You allow Twingate to identify you as a Twingate customer by name and/or logo on the Twingate website and other marketing materials, provided that the use of your name will not be deemed to be your endorsement of the Services. Any goodwill arising from the use of your name and logo will inure to your benefit.
5.5. Feedback. If you provide Twingate with any feedback about the Services, we may use that feedback and incorporate it into its products and services without any obligation to you.
6. PRIVACY AND SECURITY
6.1. Data Processing Addendum. If they are applicable to you, the terms of the DPA are incorporated by reference into and form a part of this Agreement. Notwithstanding the foregoing, the DPA does not apply to any free trials or Beta Services.
6.2. Personal Data Exports. To the extent Personal Data from the European Economic Area (“EEA”), Switzerland or the United Kingdom (collectively, “European Region”) are processed by Twingate in the course of providing the Services, the Standard Contractual Clauses may apply as set forth in the DPA. If the Standard Contractual Clauses are applicable according to the DPA, you and your Affiliates located in a European Region country are each the data exporter, and entry into this Agreement or an Order Form by you or such an Affiliate will be treated as its execution of the Standard Contractual Clauses (including its appendices).
6.3. Security. Twingate will maintain appropriate administrative, physical, technical and organizational measures to enable a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and damage to Customer Data. At reasonable intervals, we will evaluate the effectiveness of these technical and organizational measures. We cannot guarantee that Customer Data will always be completely secure or that unauthorized third parties will never be able to defeat our security measures.
6.4. Customer Privacy Obligations. You represent and warrant that you are entitled to transfer Customer Data to Twingate for the purposes of Twingate processing any Personal Data contained in the Customer Data in accordance with this Agreement. You will ensure that any relevant data subjects have been informed of such processing to the extent required by Applicable Data Protection Laws.
6.5. CCPA. Where Twingate is processing “Personal Information” (as defined by the CCPA) for you and in connection with California consumers, the parties agree that Twingate is a “Service Provider” and you are the “Business” (as each term is defined by the CCPA). As your Service Provider, Twingate will: (a) process such Personal Information solely to fulfill its obligations to you under this Agreement, on your behalf, for your operational purposes, for Twingate’s operational purposes, for other notified purposes, and for no other operational purposes; (b) cooperate as reasonably requested by you, at your expense, to enable you to comply with the CCPA with respect to responding to verifiable consumer requests to delete or access Personal Information processed by Twingate in providing the Services; and (c) not sell or otherwise disclose Personal Information for a commercial purpose.
7. CONFIDENTIALITY
7.1. Definitions. “Confidential Information” means any information disclosed by a party (“Discloser”) that has or will come into the possession or knowledge of the receiving party (“Recipient”) in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or prospective customers, suppliers, technology or business, including, where you are the Discloser, Customer Data, and, where Twingate is the Discloser, the Services and the Software; provided that Discloser’s Confidential Information does not include: (a) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (b) information that is publicly available through no wrongful act of Recipient; or (c) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
7.2. Confidentiality Obligations. Recipient agrees that during and after the term of this Agreement it will not, except to exercise its rights or perform its obligations under this Agreement: (a) disclose Confidential Information of the Discloser to any person, except to Recipient’s own personnel, contractors or Affiliates that have a “need to know” and that have entered into written agreements (or are otherwise bound by legal obligations) no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. A Recipient will take commercially reasonable efforts to safeguard the Discloser’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type and importance.
7.3. Exceptions to Confidentiality. Notwithstanding Section 7.2 (Confidentiality Obligations), Recipient may disclose Discloser’s Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (b) in the case of Twingate, to potential assignees, acquirers or successors of Twingate if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger or other corporate transaction involving the business or assets of Twingate.
8. TRADE SANCTIONS AND EXPORT CONTROL
8.1. Trade Sanctions. You may not use the Services if you or any party that owns or controls or is owned or controlled by you, is: (a) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, Switzerland, or the United States; or (b) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury’s List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce’s Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States. You will ensure that Users do not use the Services in violation of any economic or financial sanctions or trade embargoes, and that you do not provide access to the Services to persons or entities on the lists specified above.
8.2. Export Control. You agree not to directly or indirectly export, re-export or import all or any portion of the Services without first obtaining all required licenses, permits and permissions. Twingate makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under applicable laws, or that any such license or permit has been, will be, or can be obtained.
9. TERM & TERMINATION
9.1. Term. This Agreement starts on the Effective Date and continues until the earlier of: (a) 30 days after the date on which all Order Forms have been terminated or completed; and (b) the date on which this Agreement is terminated. If this Agreement is terminated, then all subscriptions and Order Forms will also immediately terminate.
9.2. Termination for Cause. A party may terminate this Agreement, a subscription, or any Order Form for cause upon written notice: (a) if 30 days have elapsed following written notice to the other party of its material breach of this Agreement and such breach remains uncured at the end of such 30 day period, or (b) if the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to winding up, insolvency, receivership, administration, liquidation, examinership, assignment for the benefit of creditors, or other similar process.
9.3. Consequences of Termination.
(a) Any Termination. Upon termination of an Order Form or subscription: (i) you will be liable to pay to Twingate any Fees accrued for the period prior to the effective date of termination; (ii) you will delete any copies of Software from your system; and (iii) each party will, upon the written request of the other, delete the other party’s Confidential Information and provide written confirmation of such action.
(b) Termination for Breach. If this Agreement is terminated by you due to Twingate’s material breach, Twingate will refund to you that portion of any prepaid Fees related to the Services not yet provided. If this Agreement is terminated by Twingate due to your material breach, you will pay any accrued but unbilled Fees and any unpaid Fees covering the remainder of the term of the applicable Order Forms or subscriptions had they not been terminated.
9.4. Survival. The following Sections will survive termination of this Agreement: Section 2.3 (Restrictions), Section 3 (Subscriptions & Payment Terms), Section 4 (Free Trials & Beta Services), Section 5 (Intellectual Property), Section 7 (Confidentiality) to Section 12 (Limitation of Liability), Section 14 (Arbitration), and Section 15 (Miscellaneous).
9.5. Unauthorized Use and Suspension. We may suspend your access or any User’s access to the Services if we reasonably believe that you or your Users have breached this Agreement. We will notify you of any such suspension and the reason it was imposed.
10. INDEMNIFICATION
10.1. By Twingate. Twingate will defend, indemnify, and hold harmless Customer and its officers, directors, employees and agents (collectively, the “Customer Entities”) from and against any liabilities, damages, and expenses (including reasonable attorneys’ fees and settlement costs), in each case, that are finally awarded by a court of competent jurisdiction attributable to a Claim or agreed to settlement by Twingate, arising out of a claim by a third party (other than any Customer Entities) based on an allegation that a paid Service, when used as authorized under this Agreement, infringes a registered copyright, registered trademark, or United States patent (a “Claim”). If any portion of a paid Service becomes, or in Twingate’s opinion is likely to become, the subject of an infringement claim, Twingate may, at Twingate’s option: (a) procure the right for you to continue using the paid Service; (b) replace the paid Service with non-infringing services which do not materially impair the functionality of the paid Service; (c) modify the paid Service so that it becomes non-infringing; or (d) terminate the paid Service and refund any pre-paid subscription fees covering the remainder of the Subscription Term, and upon such termination, you will immediately cease all use of the paid Service.
Twingate will have no obligation under this Section 10 (Indemnification) or otherwise with respect to any infringement claim based upon: (i) any use of the Services not in accordance with this Agreement or its official documentation; (ii) any use of the Services in combination with third party products or services not supplied by Twingate; or (iii) any unauthorized modification of the Services by any person other than Twingate or its authorized agents. This Section 10.1 sets forth your sole and exclusive remedies with respect to Claims against Twingate and its Affiliates.
10.2. By You. You will defend, indemnify, and hold harmless Twingate and its officers, directors, employees, Affiliates and agents (collectively, the “Twingate Entities”) from and against any liabilities, damages and expenses (including reasonable attorneys’ fees and settlement costs) arising out of a claim by a third party (other than any Twingate Entities) in connection with: (a) Customer Data or its use with the Services, including claims that Customer Data infringes or misappropriates a third party’s Intellectual Property Rights or violates applicable law; and (b) your use of the Services in breach of this Agreement.
10.3. Indemnity Procedures. A party seeking indemnification under this Agreement will promptly notify the other party of the claim and reasonably cooperate with the other party (to the extent applicable) in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the indemnified party to admit liability, perform any act or to pay any money will require that indemnified party’s prior written consent (such consent not to be unreasonably withheld or delayed); and (b) the indemnified party may join in the defense with its own counsel at its own expense.
11. REPRESENTATIONS & DISCLAIMERS
11.1. Representations. Each party represents and warrants that: (a) it has full power and authority to enter into this Agreement; and (b) it will comply with all laws and regulations applicable in connection with its provision or use of the Services, as applicable.
11.2. Disclaimer. Except as expressly provided in this Agreement and to the extent permitted by applicable law, Twingate makes no warranties of any kind, whether express, implied, statutory or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Except as expressly provided in this Agreement, Twingate provides the Services on an “as is” and “as available” basis, and makes no representations regarding the availability, reliability, quality, or accuracy of the Services, or regarding any Customer Data.
12. LIMITATION OF LIABILITY
12.1. Liability Exclusions. To the extent permitted by applicable law and except for any damages due to gross negligence or intentional misconduct of either party, in no event will either party be liable under or in connection with this Agreement for: (a) any indirect, consequential, special, incidental, punitive or exemplary damages, under any theory of law, including tort or (b) loss of or damage to: (i) data, (ii) business, (iii) revenues, or (iv) profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, and even if a remedy fails of its essential purpose.
12.2. Liability Limitations. In no event shall the aggregate liability of each party arising out of or related to this Agreement exceed the total amount paid by Customer hereunder for the Services in the 12 month period preceding the first incident from which the liability arose. The foregoing limitation shall apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Customer’s and Customer’s Affiliates’ payment obligations for the Services and any liability of either party for any damages arising out of gross negligence or intentional misconduct of such party. Notwithstanding anything to the contrary herein, any liability of Twingate and its Affiliates to Customer or its Affiliates relating to any Services provided during a free trial period, free Services, or Beta Services shall be limited to US$100.
12.3. Basis of the Bargain. You acknowledge and agree that Twingate has offered the Services, set its prices, and entered into this Agreement in reliance upon the warranty disclaimers and the limitations of liability set forth herein, that the warranty disclaimers and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between you and Twingate, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between you and Twingate.
13. CHANGES TO THIS AGREEMENT
Twingate may make changes to this Agreement at any time for a variety of reasons, such as to reflect changes in applicable law or to account for new Services or functionality. If a revision materially and adversely alters your rights as determined by Twingate in its sole discretion, we will use reasonable efforts to notify you in advance of the change becoming effective, including by sending a notification to the e-mail address(es) associated with your account. The most current version of this Agreement for the Services will be posted on the Twingate website. Changes will be effective no sooner than the day they are publicly posted. If you do not want to agree to any changes made to this Agreement, you should stop using the Services, because by continuing to use the Services after the date the changes become effective, you indicate your agreement to be bound by the updated Agreement.
14. ARBITRATION
14.1. Generally. In the interest of resolving disputes between you and Twingate in the most expedient and cost effective manner, you and Twingate agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. You understand and agree that, by entering into this Agreement, you and Twingate are each waiving the right to a trial by jury or to participate in a class action.
14.2. Exceptions. Notwithstanding Section 14.1 (Generally), we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to: (a) bring an individual action in small claims court; (b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address intellectual property infringement claims.
14.3. Arbitrator. Any arbitration between you and Twingate will be conducted in English by a single arbitrator and will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”) as modified by this Agreement (the “Rules”), and will be administered by the AAA. The Rules and filing forms are available online at www.adr.org or 800-778-7879, or by contacting Twingate.
14.4. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party, by certified mail or internationally recognized courier (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Arbitration Notice”). Arbitration Notices to you may be sent to the email address associated with your Admin Accounts. The Arbitration Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Arbitration Notice is received, you or Twingate may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Twingate shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Twingate shall pay you the greater of: (a) the amount awarded by the arbitrator, if any, or (b) the greatest amount offered by Twingate in settlement of the dispute prior to the arbitrator’s award.
14.5. Fees. Any arbitration hearings will take place at a location to be agreed upon in San Mateo County, California, provided that if the claim is for US $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in the United States Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the Rules. In such case, you agree to reimburse Twingate for all monies previously disbursed by it that are otherwise your obligation to pay under the Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
14.6. No Class Actions. You and Twingate agree that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, unless both you and Twingate agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
14.7. Modifications. If Twingate makes any future change to this arbitration provision, you may reject any such change by sending us written notice within 30 days of the change to Twingate’s address for Notice, in which case your account with Twingate will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
14.8. Enforceability; Jurisdiction. If Section 14.6 (No Class Actions) is found to be unenforceable or if the entirety of this Section 14 (Arbitration) is found to be unenforceable, then the entirety of this Section 14 (Arbitration) will be void and, in such case, the parties agree that any action at law or in equity arising out of or relating in any way to this Agreement or Twingate will be filed only in the state courts located in San Mateo County, California or federal courts located in the Northern District of California.
15. MISCELLANEOUS
15.1. Anti-Corruption. You agree that you or your Affiliates have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Twingate employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify us.
15.2. Assignment. Neither you nor Twingate may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, Twingate may assign this Agreement without notice or consent to an Affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of Twingate’s assets or of the Twingate business line to which the subject matter of this Agreement relates. Any other attempt to transfer or assign is void.
15.3. Counterparts. If this Agreement is signed, it may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will comprise a single instrument.
15.4. Entire Agreement. This Agreement (including any documents incorporated here by reference and any Order Form) constitutes the entire agreement between you and Twingate concerning its subject matter, and it supersedes any other prior or contemporaneous agreements or terms, written or oral. Any terms or conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void.
15.5. Force Majeure. Neither Twingate nor you will be liable for inadequate performance to the extent caused by events beyond the reasonable control of a party, which may include denial-of-service attacks, internet disturbance, strikes, riots, pandemics or epidemics, natural disasters, acts of God, war, terrorism, and governmental action.
15.6. Governing Law. This Agreement is governed by the laws of the State of California, without giving effect to any of its conflicts of laws principles.
15.7. Interpretation. This Agreement was prepared and written in English. Any non-English translations of this Agreement which may be made available are provided for convenience only and are not valid or legally binding. Use of section headings in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. The use of the words “includes,” “including,” “such as,” “for example,” and similar terms are deemed not to limit what else might be included.
15.8. Notices. All notices must be in writing and will be deemed given when: (a) personally delivered; (b) verified by written receipt; if sent by postal mail with verification of receipt service or courier; (c) received, if sent by postal mail without verification of receipt; or (d) verified by automated receipt or electronic logs if sent by email, provided that no bounce or other technical error message was received in response.
Notices to Twingate must be sent to Twingate Inc. at 541 Jefferson Ave, Suite 100, Redwood City, CA 94063, USA, marked to the attention of the Legal Department, with a copy emailed to legalnotices@twingate.com. Email is insufficient for providing non-routine legal notices such as indemnification claims, breach notices, and termination notices (“Non-Routine Notices”) to Twingate.
Notices to you may be sent to the email address associated with your designated primary Admin Account for the relevant Service. You may grant approvals, permission, extensions and consents by email. You consent to receiving certain electronic communications from us in connection with your use of the Services. You agree that any notices or other communications sent to you electronically will satisfy any legal notice requirements. Billing-related notices (including notices of overdue payments) may be sent to the relevant billing contact designated by you. Notices to Users may be sent to the email address associated with that User’s account. You and your Users must keep contact details associated with your User accounts and billing contacts current and accurate, and you will notify Twingate in writing of any changes to such details.
15.9. Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) other documentation. This Customer Agreement does not apply to the parties if the parties have entered into a separate agreement that expressly excludes the applicability of these online terms.
15.10. Relationship. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.11. Severability. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
15.12. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
15.13. Waiver. A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do later. Any waiver by Twingate of any provision of this Agreement will be effective only if in writing and signed by Twingate. Any cause of action arising out of or related to the Services by the Customer against Twingate must commence within 1 year after the cause of action accrues.
16. U.S. GOVERNMENT CUSTOMERS
If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government Customer as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
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