Version Date: June 21, 2022
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 (“Customer”) enter into this Agreement and 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” (or 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” refers to that entity.
In this Agreement:
“Admin Account” means a User Account with administrative rights or permissions.
“Affiliate” means, in relation to a party, an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with that 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 Customer as alpha, beta, experimental, pilot, limited release, developer preview, early access, non-production, evaluation, provided prior to general commercial release, or similar.
“CCPA” means the California Consumer Privacy Act of 2018 or any successor legislation.
“Customer” means the individual or entity entering into this Agreement and receiving the Services.
“Customer Data” means data that Customer or Users transmit to or through the Services.
“DPA” means the Data Processing Addendum available at https://www.twingate.com/legal/.
“Fees” means all amounts payable by Customer in connection with Services under an applicable Order Form.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented.
“Order Form” means any account signup, online checkout, or online order process; or order form, statement of work (“SOW”), or similar document, that Customer enters into with Twingate that references or is made subject to 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 Applicable Data Protection Laws.
“Service Account” means a type of User Account that is created for the purpose of being used by system processes. The User associated with a Service Account is considered to be the User primarily responsible for managing such account and how it is used by system processes.
“Software” means any software included with the Services that is made available to Customer by Twingate for installation on Customer or User devices.
“Software Updates” means updates, upgrades, bug fixes, patches, and other error corrections to the Software.
“Status Page” means the website located at https://status.twingate.com (or a successor URL) on which Twingate provides information about the status of its services.
“Twingate” means 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.
“Usage Data” means any data derived from the operation or support of the Services, including statistical and diagnostic data about the configuration, use, and performance of the Services. Examples of Usage Data include application crash reports, User interactions with user interfaces, bandwidth use, and application telemetry.
“USD” means United States dollars.
“User” means an individual that is authorized by Customer to use the Services. Users may include, for example, Customer’s and its Affiliates’ employees, consultants, customers, external users, contractors, agents, and third parties with whom Customer does business.
“User Account” means an account assigned to a User that can be used to access the Services. A Service Account is a type of User Account.
“User Terms” means the User Terms of Service available at https://www.twingate.com/legal/.
2.1. Provision of Services. Twingate will provide the Services to Customer in accordance with this Agreement, including any Order Forms.
2.2. Software. To the extent that use of the Services requires Customer to install Software, Twingate grants to Customer a non-exclusive, non-transferable (except pursuant to Section 14.3 (Assignment)), and non-sublicensable license to install, copy and use the Software solely as necessary to use the Services in accordance with this Agreement and Twingate documentation. If Customer’s right to use the Services terminates, Customer’s license to any related Software will also terminate.
2.3. Software Updates. Twingate may occasionally make Software Updates available to Customer and Twingate recommends that Customer installs them at its earliest convenience. All Software 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 if Customer does not install the Software Updates in a timely manner.
2.4. Restrictions. Unless otherwise expressly permitted in writing by Twingate, Customer will not (and will not permit a User or 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 (whether intentionally or unintentionally), which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability or functionality of the Services;
(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 unauthorized by Twingate (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 directly competitive purpose;
(j) circumvent or attempt to circumvent any limitations that Twingate imposes on Customer’s 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, or to facilitate unlawful activities;
(m) use the Services to transmit any code, agents, software, or links to such materials (such as viruses, worms, Trojan horses, and malware) with the intent to do harm;
(n) permit 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 relating to Personal Data or specific types of sensitive data that Twingate would not otherwise be generally subject to. For example, Customer may not use the Services to collect, process, store, or otherwise handle “protected health information” (as defined under HIPAA) in a manner that would subject Twingate to HIPAA without entering into a separate business associate agreement with Twingate that permits Customer to do so.
2.5. User Accounts. Customer may allow Users that Customer designates 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 Customer represents and warrants that no Users will be under the age of 16. Customer is responsible for ensuring that Users’ use of the Services comply with the User Terms and this Agreement. If there is a conflict between the User Terms and this Agreement, this Agreement will prevail to the extent of the conflict.
2.6. Third Party Services. Customer 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 Customer chooses to use a Third Party Service, Customer acknowledges that such Third Party Service may access, use, disclose, provide, modify, or delete Customer Data in accordance with its functionality, and Customer agrees that Twingate will not be responsible for any such actions.
2.7. Updates to the Services. Customer acknowledges that, as is typical for software-as-a-service products, Twingate may continually update the Services. Customer agrees that its purchase of the Services is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public documents made by Twingate regarding future functionality or features.
2.8. Suspension of Services. Twingate may temporarily suspend or disable the Services, or restrict Customer’s or any User’s access to the Services or any component thereof:
(a) if Twingate reasonably determines that Customer or a User has breached this Agreement, including Section 2.4 (Restrictions);
(b) for a failure to timely pay any Fees;
(c) if Twingate reasonably determines such action is required to avoid or mitigate material harm to Twingate or its customers, such as if the Services are experiencing excessive use, denial of service attacks, or other attacks or disruptions outside of Twingate’s control;
(d) to address any emergency security concerns, such as if Twingate becomes aware that a User Account may have been used by an unauthorized person;
(e) for scheduled or emergency maintenance of the Services; or
(f) if required to do so by law or a governmental or regulatory authority.
Where practicable in the circumstances and permitted by law, Twingate will notify Customer of any such suspension, disablement, or restriction and limit its scope and duration to the minimum time necessary to redress or resolve the reason for such action. Twingate will endeavor to schedule any maintenance to off-peak hours. To receive advance notice of any scheduled maintenance that Twingate expects to cause material temporary unavailability of the Services, Customer may subscribe to service updates via the Status Page.
2.9. Unauthorized Use. Customer will promptly notify Twingate if Customer becomes aware of any actual or suspected unauthorized use of or access to the Services.
2.10. Managed Subdomains. Twingate permits Customers to specify a subdomain of a Twingate-managed domain (“Subdomain”) to be associated with their Customer account. Customer acknowledges that it has no ownership rights with respect to Subdomains, and Twingate may, in its sole discretion, modify the name of a Subdomain assigned to Customer at any time (for example, to remove profanity or address a trademark infringement claim). Before doing so, Twingate will endeavor to provide Customer with a reasonable opportunity to select a different Subdomain name. Customer will not use any profanity or other inappropriate terms in Subdomains.
2.11. Twingate Policies. Customer will comply with any Twingate policies regarding the Services (excluding any privacy policies and privacy notices) located at https://www.twingate.com/legal.
3. SUBSCRIPTIONS, FEES & PAYMENT TERMS
3.1. Subscription Term. Services provided to Customer on a subscription basis (“subscriptions”) will be provided for the duration specified on the Order Form for that subscription (“Subscription Term”). Unless otherwise agreed, each of Customer’s subscriptions will automatically renew for periods equal to the initial Subscription Term specified for that subscription until Customer cancels its 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.
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).
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 monetary amounts on an Order Form are denominated in USD;
(b) all Fees will be paid by Customer in USD;
(c) invoices are due within 30 days of the invoice date; and
(d) if Customer’s billing method is by invoice, 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. Purchase Orders. If Customer issues to Twingate a purchase order upon entering into an Order Form, any such purchase order is for Customer’s internal purposes only, and any terms in such purchase order are rejected by Twingate, do not amend this Agreement, and have no effect. If Customer requests Twingate to reference a purchase order number on a Twingate invoice, such reference is included for administrative convenience only.
3.6. Price Changes. Twingate may change the Fees that Twingate charges for any Services that automatically renew by giving Customer at least 30 days’ prior written notice of such changes, provided that any such changes will not take effect earlier than the next renewal date for the applicable Service.
3.7. Taxes. Unless otherwise stated, Twingate’s 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”). Customer is responsible for paying any Taxes associated with Customer’s purchases under this Agreement, except for those assessable against Twingate based on Twingate’s income, property, or employees. If Twingate has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.7, Twingate will invoice Customer and Customer will pay that amount unless Customer provides Twingate with a valid tax exemption certificate authorized by the appropriate taxing authority. Where applicable, Customer will provide its VAT/GST registration number on an Order Form to confirm the business use of the ordered services.
3.8. Withholding Tax. Taxes will not be deducted from payments to Twingate, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Twingate receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Twingate’s request, Customer will provide to Twingate its proof of withholding tax remittance to the respective tax authority.
3.9. Card Payments. If Customer provides Twingate with credit or debit card (“Payment Card”) details for the payment of Fees, Customer: (a) represents that it is authorized to use such Payment Card; (b) authorizes Twingate to charge such Payment Card on a periodic basis for the Fees when due, including upon sign up for paid Services and upon renewal; (c) agrees to keep its Payment Card details valid and current; and (d) agrees to pay any processing fees that are charged by third-party payment processors or Payment Card issuers. If Customer’s Payment Card is declined when Twingate attempts to charge it, Twingate may try to charge it again at a later time. If Twingate does not receive payment, Twingate may suspend or terminate Customer’s Services.
3.10. Treatment of Overages. During a Subscription Term, Twingate may review Customer’s usage of the Services (e.g. the number of User Accounts provisioned by Customer). Customer agrees to pay for any usage beyond the amounts previously purchased by Customer (“Overage”). Unless otherwise agreed in writing, if additional User Accounts are required to be purchased by Customer to address any Overages, Twingate may bill Customer for such additional User Accounts at the per unit pricing in effect at the time (as specified in the Order Form for the underlying subscription), and prorated for the portion of the Subscription Term remaining at such time.
3.11. Pricing Terminology. References to a “seat” or “user” in an Order Form for pricing purposes is a reference to a User Account.
4. FREE TRIALS & BETA SERVICES
4.1. Free Trials. If Customer receives a free trial of the Services (including participating in a free proof of concept), Customer 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 written notice to the other.
4.2. Beta Services. If Customer chooses to receive Beta Services, Customer agrees to comply with any written requirements provided by Twingate regarding those Beta Services. Beta Services are provided for Customer’s internal testing and evaluation purposes only and are not intended for use in production environments, with sensitive data, or as mission critical systems. Customer acknowledges and agrees 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 Customer; and (c) that Customer uses Beta Services at its own risk. Customer is solely responsible for maintaining and protecting all data and information that is processed by Beta Services. Customer 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 Customer’s use of the Beta Services.
5. INTELLECTUAL PROPERTY
5.1. Twingate Intellectual Property. As between Customer 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 Customer by Twingate other than as expressly provided for in this Agreement. Customer may not remove or alter any copyright, trademark or other notices or proprietary markings appearing within the Services and Software provided to Customer. Except as permitted by any brand and trademark use policies or rules that Twingate publishes, this Agreement does not grant Customer any right to use any Twingate Mark or brand element.
5.2. Customer Intellectual Property. As between Customer and Twingate, Customer retains ownership of the Customer Data and all intellectual property rights and other proprietary rights related to them. Customer grants Twingate, its Affiliates, and their applicable contractors, 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, supporting, and improving the Services. Customer warrants that Customer has all necessary rights to provide Customer Data to Twingate and that Customer Data, and its use by Twingate in connection with providing the Services, will not violate the rights of any third party or any applicable laws.
5.3. Usage Data. Twingate may collect and use Usage Data to provide, maintain, support, and improve its products and services. Twingate may not share with a third party any Usage Data that includes Customer Confidential Information, except: (a) in accordance with Section 7 (Confidentiality); or (b) to the extent Usage Data is anonymized such that Customer and Users cannot be identified.
5.4. Publicity. Customer allows Twingate to identify Customer as a Twingate customer by its name, logo and/or other type of mark on the Twingate website and other marketing materials. Any goodwill arising from the use of Customer’s name and marks by Twingate will inure to Customer’s benefit.
5.5. Feedback. If Customer provides Twingate with any feedback about Twingate’s products and services, Twingate may use that feedback and incorporate it into its products and services without any obligation to Customer.
6. PRIVACY AND SECURITY
6.1. Data Processing Addendum. If the DPA is applicable to Customer, the parties will comply with the DPA. Notwithstanding the foregoing, and unless otherwise agreed, the DPA does not apply to any 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”) is processed by Twingate in the course of providing the Services, the Standard Contractual Clauses (as defined in the DPA) may apply as set forth in the DPA. If the Standard Contractual Clauses are applicable according to the DPA, entry into this Agreement will also be treated as execution of the Standard Contractual Clauses (including its annexes) as described in the DPA.
6.3. Customer Privacy Obligations. Customer represents and warrants that it is entitled to transfer Customer Data to Twingate for the purpose of Twingate processing any Personal Data contained in the Customer Data in accordance with this Agreement. Customer will ensure that any relevant data subjects have been informed of such processing to the extent required by Applicable Data Protection Laws.
6.4. CCPA. Where Twingate is processing “Personal Information” (as defined by the CCPA) for Customer and in connection with California consumers, the parties agree that Twingate is a “Service Provider” and Customer is a “Business” (as each term is defined by the CCPA). As Customer’s Service Provider, Twingate will:
(a) process such Personal Information solely to fulfill its obligations to Customer under this Agreement and for “business purposes” (as that term is defined by the CCPA);
(b) cooperate as reasonably requested by Customer, at Customer’s expense, to enable Customer 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.
6.5. Account Consolidation. If Customer is an individual who registers for the Services using an email address with the same business email domain as an organization that is an existing or prospective Twingate customer, Customer agrees that Twingate may disclose Customer’s identity and business email address to such existing Twingate customer for the purpose of facilitating the consolidation of that customer’s Twingate accounts.
6.6. Security. Twingate will maintain appropriate administrative, physical, technical, and organizational measures designed to protect against unauthorized or unlawful processing, and accidental loss of and damage to Customer Data. At reasonable intervals, Twingate will evaluate the effectiveness of such administrative, physical, technical, and organizational measures. Customer acknowledges that Twingate cannot guarantee that Customer Data will always be completely secure or that unauthorized third parties will never be able to defeat Twingate’s security measures.
7.1. Definitions. “Confidential Information” means any information disclosed by a party (“Discloser”) to the other party (“Recipient”) in connection with this Agreement that is either designated by Discloser as confidential at the time of disclosure, or would reasonably be understood by Recipient to be confidential given the nature of the information and the circumstances under which it was disclosed. Confidential Information is deemed to include, where Customer is the Discloser, Customer Data and, where Twingate is the Discloser, the Services, the Software, and the terms of this Agreement. Notwithstanding the foregoing, 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 breach of this Agreement by 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 it will:
(a) use commercially reasonable efforts to protect Discloser’s Confidential Information, which efforts will, in any event, be at least as stringent as the measures that Recipient takes to protect its own Confidential Information of a similar type and importance;
(b) not use Discloser’s Confidential Information for any purpose outside the scope of this Agreement;
(c) not disclose Discloser’s Confidential Information to any third party, except to Recipient and its Affiliates’ personnel, agents, and contractors who need that access for purposes consistent with this Agreement 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; and
(d) not alter or remove from any of Discloser’s Confidential Information any proprietary legend.
7.3. Exceptions to Confidentiality. Notwithstanding Section 7.2 (Confidentiality Obligations), Recipient may disclose Discloser’s Confidential Information 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.
8. TRADE SANCTIONS AND EXPORT CONTROL
8.1. Trade Sanctions. Customer represents that it, and any party that owns or controls it, is not: (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. Customer will ensure that Users do not use the Services in violation of any economic or financial sanctions or trade embargoes, and that Customer does not provide access to the Services to persons or entities on the lists specified above.
8.2. Export Control. Customer agrees 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 (if any).
9. TERM & TERMINATION
9.1. Term. This Agreement starts on the Effective Date and continues until the earlier of: (a) the date on which all Order Forms and subscriptions have been terminated or completed; and (b) the date on which this Agreement is terminated (the “Term”).
9.2. Termination for Cause. A party may terminate this Agreement, any 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 (including a failure to timely pay Fees) 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 this Agreement, an Order Form, or a subscription, Customer will remain liable to pay any Fees accrued for the applicable terminated Services prior to the effective date of termination. Upon termination of this Agreement, all subscriptions and Order Forms will also immediately terminate.
(b) Termination for Breach. If this Agreement, an Order Form, or a subscription is terminated by Customer due to Twingate’s material breach, Twingate will refund to Customer any unused Fees that Customer has prepaid for the applicable terminated Services. If this Agreement, an Order Form, or a subscription is terminated by Twingate due to Customer’s material breach, Customer will pay any unpaid fees covering the remainder of the Subscription Term of the applicable terminated Services, had they not been terminated for material breach.
9.4. Survival. The following Sections will survive termination of this Agreement: 2.4 (Restrictions), 3.2 (Fees), 3.3 (Payment Terms), 3.4 (Overdue Payments), 3.7 (Taxes), 3.8 (Withholding Tax), 5.3 (Usage Data), 5.5 (Feedback), and 7 (Confidentiality) to 14 (Miscellaneous).
10.1. By Twingate. Twingate will defend Customer against any third party claim alleging that the Services, when used in accordance with this Agreement, infringes any intellectual property right of such third party (a “Claim Against Customer”), and will indemnify and hold harmless Customer from and against any costs (including reasonable attorneys’ fees) and damages finally awarded against Customer or agreed in a settlement approved by Twingate resulting from such Claim Against Customer. However, in no event will Twingate have any obligation or liability under this Section 10.1 to the extent arising from: (a) any use of the Services not in accordance with this Agreement or its official documentation; (b) any use of the Services in combination with third party products or services not supplied by Twingate; (c) any unauthorized modification of the Services other than by Twingate or its authorized agents; (d) any Customer Data; or (e) Beta Services or any Services for which there is no fee or charge.
10.2. Potential Infringement. If Twingate believes that any portion of a Service may infringe or may be alleged to infringe a third party’s intellectual property rights, then Twingate may, at its option:
(a) procure the right for Customer to continue using that Service;
(b) replace that Service with a non-infringing Service that does not materially impair the functionality of that Service;
(c) modify that Service so that it becomes non-infringing; or
(d) terminate that Service and refund any prepaid subscription Fees covering the remainder of the applicable Subscription Term and, upon such termination, Customer will immediately cease all use of that Service.
10.3. By Customer. Customer will defend Twingate and its Affiliates against any third party claim arising from or relating to Customer’s provision or use of Customer Data (a “Claim Against Twingate”) and will indemnify and hold harmless Twingate from and against any costs (including reasonable attorneys’ fees), liability, and damages awarded against Twingate or agreed in a settlement approved by Customer resulting from such Claim Against Twingate.
10.4. 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. The provisions of this Section 10 (Indemnification) state Twingate’s entire liability and constitute the other party’s sole and exclusive financial remedy for any indemnification claims. Notwithstanding the foregoing, nothing in this Agreement will prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations, or enforcement or recognition of any award or order in any appropriate jurisdiction.
11. REPRESENTATIONS & DISCLAIMERS
11.1. Representation. Each party represents and warrants that it has full power and authority to enter into this Agreement.
11.2. Legal Compliance. Customer will use the Services in compliance with all applicable laws and regulations.
11.3. 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. LIMITATIONS OF LIABILITY
12.1. Liability Exclusions. To the maximum extent permitted by applicable law, in no event will either party or its Affiliates be liable to the other party 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) business, (ii) savings, (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. To the maximum extent permitted by applicable law, in no event shall the aggregate liability of Twingate and its Affiliates to Customer for all claims arising out of or related to this Agreement exceed the total amount paid by Customer under the applicable Order Form to which such liability relates for the Services in the 12 month period preceding the incident from which the liability arose.
12.3. Free and Beta Services. Notwithstanding anything to the contrary in this Agreement, any liability of Twingate and its Affiliates to Customer relating to any Services provided during a free trial period, free Services, or Beta Services, shall be limited to US$100.
12.4. Basis of the Bargain. The limitations in this Section 12 (Limitations of Liability) apply regardless of the form of action or theory of liability, whether in contract, tort, strict liability or otherwise, and will apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Customer acknowledges and agrees 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 Customer and Twingate, and that the warranty disclaimers and the limitations of liability set forth herein form an essential basis of the bargain between Customer and Twingate.
13.1. Governing Law. This Agreement is governed by the laws of the State of California, without giving effect to any of its conflicts of laws rules.
13.2. Jurisdiction and Venue. Except if prohibited by applicable law, in relation to any legal action or proceedings to enforce this Agreement or arising out of or in connection with this Agreement, each party irrevocably submits to the exclusive venue and personal jurisdiction of the state courts located in San Mateo County, California, and the federal courts located in the Northern District of California.
14.1. Anti-Corruption. Customer agrees that Customer and its Affiliates have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Twingate’s 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 Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Twingate.
14.2. Amendments. Except as expressly agreed otherwise and subject to Section 14.13 (Updates), no amendment of this Agreement will be effective unless it is agreed in a writing signed by a duly authorized representative of each party.
14.3. Assignment. Neither party 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.
14.4. Counterparts. This Agreement and any Order Form 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.
14.5. Entire Agreement. This Agreement (including any documents incorporated herein by reference and any Order Form) constitutes the entire agreement between Customer 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, vendor web portal, vendor onboarding form, or similar document issued by Customer do not apply to the Services, do not override or form a part of this Agreement, and are void.
14.6. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by events beyond the reasonable control of that party, including denial-of-service attacks, systemic electrical, telecommunications or other utility failures, embargoes, strikes, riots, pandemics, epidemics, natural disasters, acts of God, war, terrorism, and governmental action.
14.7. 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. The 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.
14.8. 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 email@example.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 Customer may be sent to the email address associated with Customer’s designated primary Admin Account for the relevant Service. Customer may grant approvals, permission, waiver, extensions and consents by email. Customer consents to receiving certain electronic communications from Twingate in connection with Customer’s use of the Services. Customer agrees that any notices or other communications sent to Customer 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 Customer. Notices to Users may be sent to the email address associated with that User’s account. Customer and Users must keep contact details associated with User accounts and billing contacts current and accurate, and Customer will notify Twingate in writing of any changes to such details.
14.9. Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, and (2) the remainder of this Agreement. 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.
14.10. Relationship. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.11. 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.
14.12. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
14.13. Updates. Twingate may make changes to this Agreement from time to time for a variety of reasons, such as to reflect changes in the law or our business. If a revision materially and adversely alters Customer’s rights as determined by Twingate in its sole discretion, Twingate will use reasonable efforts to provide written notice to Customer prior to the change becoming effective, such as by emailing the email address associated with an Admin Account or by messaging Customer through the Services. Any material adverse changes to this Agreement will become effective on the date set forth in such notice and, unless otherwise specified, all other changes will become effective upon posting on the Twingate website. The most current version of this Agreement for the Services will be posted on the Twingate website. If Customer does not wish to agree to any changes made to this Agreement, Customer should stop using the Services and notify Twingate, because by continuing to use the Services after the date the changes become effective, Customer indicates its agreement to be bound by the updated Agreement.
14.14. Waiver. A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later. Any waiver of any provision of this Agreement will be effective only if in writing and, in the case of a waiver by Twingate, 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.
15. 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.
16.1. Purchase from Reseller. Customer may procure use of any Service from an authorized distributor or reseller of Twingate (“Reseller”) pursuant to a separate order form or SOW, and other commercial terms that Customer enters into with the Reseller that references this Agreement (“Reseller Order Form”). Twingate will be under no obligation to provide the Services to Customer under a Reseller Order Form unless it has received a copy of such Reseller Order Form.
16.2. Reseller Terms. If Customer has procured use of any Services through a Reseller:
(a) Customer’s use of such Services will be subject to the terms of this Agreement and all Fees payable for such use shall be payable pursuant to the terms of the Reseller Order Form;
(b) different terms regarding invoicing, payment and taxes will apply as specified under the Reseller Order Form, and the corresponding terms in this Agreement do not apply;
(c) any references to “Order Form” in this Agreement (apart from the definition of Order Form) refer to the applicable Reseller Order Form instead, except that, as between Twingate and Customer, Reseller Order Forms shall not be regarded as forming a part of this Agreement; and
(d) Customer acknowledges that: (i) Twingate may share information with Reseller related to Customer’s use and consumption of the services for account management and billing purposes; and (ii) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Twingate or concerning the Services.
16.3. Termination. In accordance with an agreement between Twingate and Reseller (“Reseller Agreement”), Twingate may suspend the Services or terminate this Agreement (including Customer’s right to use the Services) if: (a) Twingate is notified by Reseller of Customer’s failure to pay amounts due to Reseller for the Services in accordance with Customer’s agreement with that Reseller; (b) Customer breaches this Agreement in a manner that gives Twingate a right to terminate it; (c) Twingate does not renew this Agreement or a subscription to the Services under this Agreement; or (d) Reseller fails to pay amounts due to Twingate with respect to the Services. Customer accepts these suspension and termination rights and agrees that Twingate will have no liability to Customer of any kind with respect to any such suspension or termination, and that Customer’s sole recourse in such event will be against Reseller. If Customer’s Reseller Order Form is terminated, this Agreement will automatically terminate with respect to such Reseller Order Form, unless otherwise agreed in writing by the parties. If the Reseller Agreement terminates, any subscriptions Customer has will continue for the period Customer has paid Reseller for, unless Twingate elects to terminate such Services upon 30 days’ written notice. If Customer wishes to continue using the Services beyond such period and Twingate agrees, Customer will be required to sign a separate Order Form with Twingate for those Services.
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