Twingate Beta Testing Terms
Version Date: April 20, 2020
These Twingate Beta Testing Terms (“Terms”) govern your access to, and use of, any Twingate-branded products and services provided to you by Twingate for beta testing purposes (“Services”). The “Effective Date” of these Terms is the earlier of the date you enter into these Terms and the date you first access the Services. As used in these Terms, “Twingate” means (a) Pango Inc. if you are a resident of the United States, or (b) Pango GmbH if you are not a resident of the United States.
You may enter into these Terms in a variety of ways, including by executing an agreement separately or clicking an “I accept” button (or any similar button) that indicates your acceptance of these Terms.
If you are entering into these Terms on behalf of an entity, you must have the necessary authority to enter into these Terms on behalf of that entity before proceeding. In such a case, you represent that you are authorized to bind that entity to these Terms and subsequent references to “Customer,” “you,” and “your” refer to that entity. If you do not agree to these Terms, you must destroy, return or delete any copies of software made available to you as part of the Services.
Services. Subject to these Terms, Twingate grants you an evaluation subscription and a personal, non-exclusive, non-transferable, non-sublicensable right to access and use the services offered by Twingate for your personal internal evaluation purposes during the term of these Terms. Other than the rights expressly specified in these Terms, no other rights in the Services are granted to you.
Software. Twingate may make certain software applications or components available to you for download as part of the Services, including via app stores and other channels (the “Software”). Unless expressly stated otherwise at the time of download or as otherwise agreed by Twingate, the Software may only be used as a part of the Service. Twingate grants you a limited non-exclusive, non-transferable license to use and copy, during the term of these Terms, the Software solely as necessary to enable your use of the Services. Other than the rights expressly specified in these Terms, no other rights in the Software are granted to you.
Term and Termination. We may terminate these Terms upon written notice. Within 5 days after termination, you will delete copies of the Software and any Confidential Information provided to you under these Terms and, upon Twingate’s request, confirm in writing that they have been deleted. Sections 3-13 of these Terms will survive termination of these Terms.
Restrictions; Confidentiality. You acknowledge that the Services (including the Software) contain confidential information and trade secrets of Twingate and its licensors. You will not: (a) copy (except as strictly necessary to use the Software in accordance with these Terms), distribute, sell, sublicense or otherwise transfer or make available the Services, the Software or any portion thereof to any third party; (b) remove from view any copyright legend, trademark or confidentiality notice appearing on the Software; (c) modify, adapt, translate, reverse engineer, decompile or derive the source code for the Software, or authorize a third party to do any of the foregoing, except to the extent that such restriction is expressly prohibited by applicable law. You will reproduce all of Twingate’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Software that you make hereunder. You may not use the Software or any documentation provided with the Software for any purpose other than your personal evaluation and the provision of feedback to Twingate. You may not disclose to any third party (without the prior written approval of Twingate), the Services or the Software, their features, feedback about the Services, related technical information that would reasonably be regarded as confidential or specifically identified as confidential, or the results of any performance or functional evaluation or test of the Software (the “Confidential Information”). You may disclose Confidential Information only to those of your employees and contractors who have a bona fide need to know such information for your evaluation of the Services and Software and who have first executed a written agreement that contains use and nondisclosure restrictions at least as protective as those set forth in this Section. You will use no less than all reasonable efforts to protect the Confidential Information from unauthorized access, use or disclosure. You will immediately report any breach of this provision to Twingate that you become aware of and shall employ all reasonable means to mitigate any damages or losses that Twingate may incur as a result of any such violation.
Proprietary Rights. As between you and Twingate: (a) Twingate retains sole ownership of all intellectual property rights in the Services and the Software and other technology used to provide the Services; and (b) you retain sole ownership of all intellectual property rights in any data that you provide to Twingate in the course of using the Services (“User Data”). You grant Twingate a license during the Term to use the User Data solely for purposes of providing the Services in accordance with these Terms.
Third-Party Software. Certain portions of the Software may be subject to open source or free software licenses (“Third Party Software”). Such Third Party Software is not subject to these Terms but is licensed under the terms and conditions of the license that accompanies such Third Party Software.
Warranty. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS-IS.” TWINGATE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE IN TRADE.
Acknowledgment of Beta Status of Services. You acknowledge that the Services are provided for beta testing and evaluation purposes only and that you use the Services at your own risk. You acknowledge and agree that: (a) neither the Services nor the Software have been commercially released by Twingate; (b) the Services and the Software may not operate properly, be in final form or fully functional; (c) the Services and the Software may contain errors, design flaws or other problems; (d) it may not be possible to make the Services and/or the Software fully functional; (e) the information obtained using the Services and/or the Software may not be accurate; (f) use of the Services and/or the Software may result in unexpected results, loss of data or communications, project delays or other unpredictable damage or loss; (g) Twingate is under no obligation to release a commercial version of the Services and/or the Software; and (h) Twingate has the right to unilaterally abandon development of the Services and/or the Software, at any time and without any obligation or liability to you. You acknowledge and agree that you should not rely on the Services for any reason. You are solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the 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 Services.
Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF TWINGATE AND ITS AFFILIATES TO YOU ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OF THE SERVICES OR THE SOFTWARE, OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, OR FOR THE PROVISION OF TECHNICAL SUPPORT INSTALLATION, TRAINING OR OTHER SERVICES IN CONNECTION THEREWITH, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE GREATER OF: (A) ANY FEES PAID TO TWINGATE HEREUNDER; AND (B) $100. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TWINGATE OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS REVENUE, OR DATA CORRUPTION OR LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS REFLECT THE ALLOCATION OF RISK AGREED TO BY THE PARTIES. THE PARTIES WOULD NOT ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON LIABILITY.
Feedback. You will provide feedback to Twingate as reasonably requested concerning the features, functionality, and performance of the Services and the Software. If you provide feedback to Twingate, all such feedback will be the sole and exclusive property of Twingate. You hereby irrevocably transfer and assign to Twingate and agree to irrevocably assign and transfer to Twingate all of your right, title, and interest in and to all feedback including all intellectual property rights therein (collectively, “Feedback IP”). You will not earn or acquire any rights in the Services or licenses in the Software or in any Feedback IP by virtue of these Terms or your performance under these Terms, even if Twingate incorporates any of your feedback into the Services or the Software.
Export Restrictions. You may only use the Services if you are not barred under any applicable laws from doing so. You certify that you are not: (a) located in a country or region subject to trade sanctions or embargoes imposed, administered, or enforced by the United States or Switzerland; or (b) an individual or entity on the U.S. Department of Commerce’s Denied Persons List or Entity List, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders List, or any other sanctions or restricted persons lists maintained by the United States or Switzerland. You will not, directly or indirectly, export, re-export, transfer or otherwise make available the Services: (i) to any person or entity on any of the foregoing lists, or (ii) in violation of any restrictions maintained by the U.S. Department of Commerce, the U.S. Treasury Department Office of Foreign Assets Control, or any other U.S. or foreign governmental agency or authority.
Commercial Use. If Twingate releases a commercially available non-beta version of the Services and Software (“Commercial Release”), you will be required to enter into a separate agreement with Twingate if you wish to use such Commercial Release, as these Terms do not provide you with any rights with respect to a Commercial Release. If you desire to use the Services for purposes beyond the scope expressly authorized by these Terms, then you must enter into a separate agreement with Twingate under terms to be agreed upon by the parties.
General. You may not assign or otherwise transfer, by operation of law or otherwise, any of its rights under these Terms without Twingate’s prior written consent, and any attempted assignment without such consent will be void. Twingate may assign these Terms without your written consent. These Terms constitute the entire agreement between the parties and supersede any and all prior and contemporaneous agreements, communications and understandings with respect to the evaluation of the Services. If you are contracting with Pango Inc.: (a) these Terms shall be governed by the laws of the State of California (excluding its conflict of law rules); and (b) any legal action or proceeding arising under these Terms will be brought exclusively in the federal courts located in the Northern District of California or state courts located in San Mateo County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein. If you are contracting with Pango GmbH: (i) these Terms shall be governed by Swiss law (excluding its conflict of law rules); and (ii) each party irrevocably submits to the exclusive jurisdiction of the courts in Zurich, Switzerland in relation to any legal action or proceedings to enforce these Terms or arising out of or in connection with these Terms. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such provision will be construed so as to be enforceable to the maximum extent permissible by law, and the remaining provisions of these Terms will remain in full force and effect. The waiver of any breach or default will not constitute a waiver of any other right hereunder or of any subsequent breach or default. All notices required or permitted under these Terms must be in writing.