Thank you for participating in the Forter Beta Program. These Beta Program Terms and Conditions (“Beta Terms”) apply to and govern your participation in one or more Forter beta programs (each, a “Beta Program”) and your use of Beta Services (defined below). In order to participate in a Beta Program or use Beta Services, you must agree to these Beta Terms. As used in these Beta Terms, “Customer” (or ‘you’ and ‘your’) means the entity that has signed a Merchant Services Agreement or other customer contract (an “MSA”) with Forter, Ltd. or one of its affiliates (collectively, “Forter” (or ‘us’, ‘we’ or ‘our’, as applicable)).
1. Eligibility and Participation; Customer Obligations
1.1 From time to time you may be asked by Forter to participate in one or more Beta Programs. You may participate in a Beta Program and/or use the Beta Services only upon request and approval by Forter.
1.2 By using any Forter Beta Services, you hereby agree to comply with all written requirements provided by Forter from time to time regarding the Beta Services, including these Beta Terms, and any other documentation or guidelines (including integration guidelines and guidelines on acceptable access and use and/or limitations of use) provided by Forter relating to participation in the Beta Program (collectively, the “Beta Terms of Service”). The Beta Terms of Service are incorporated herein by reference and will be binding regardless of whether the relevant provisions are addressed in these Beta Terms.
1.3 In the event of any conflict between these Beta Terms and the MSA between you and Forter, these Beta Terms will govern and control with respect to the Beta Program and/or Beta Services.
1.4 You agree to comply with all applicable laws, rules, and regulations in connection with your participation in the Beta Program and/or access and use of the Beta Services, including U.S. export control and data protection laws.
2. Beta Services
2.1 “Forter Beta Services” means any product or service, or a feature of any product or services, that is designated or presented by Forter as beta, experimental, pilot, limited release, in development, early access, non-production or evaluation, that it is provided to you prior to general commercial release, regardless of whether such product or service is specifically designated as a ‘beta’ product or service. Unless otherwise expressly agreed in writing by Forter, Forter is not obligated to provide any maintenance, technical, or other support for the Beta Services.
2.2 Forter reserves the right to offer theBeta Services for free, or to charge fees to access and use the Beta Services. If any fees will be charged in connection with the Beta Services you will be informed of such fees prior to being granted access to the Beta Services. If you choose to access or use the Beta Services you will be charged the fees communicated to you in advance, regardless of whether you have expressly agreed to such fees.
3. Feedback
3.1 As part of participating in a Forter Beta Program, you will be asked to provide feedback from time to time regarding your use of the Beta Services, without any compensation or reimbursement of any kind from Forter. Forter reserves the right to terminate your participation in the Beta Program and your use of the applicable Beta Services in the event you fail to provide such feedback when requested.
3.2 You acknowledge and agree that Forter owns all suggestions, enhancement requests, recommendations or other feedback (collectively, “Feedback”) provided by you or your users of the Beta Services. To the extent rights in such Feedback do not automatically vest in Forter, you agree to cooperate with Forter to effectuate the foregoing assignment. If applicable law prevents ownership of Feedback vesting exclusively in Forter, you hereby grant Forter and its affiliates a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such Feedback into any of our products or services at any time at our sole discretion.
3.3 You acknowledge and agree that Forter may monitor how you use the Beta Services and use that information to improve the Beta Services or our other products and services.
4. Intellectual Property
4.1 You agree that Forter owns all right, title and interest, including all intellectual property and proprietary rights, in and to the Beta Services, and any and all derivatives thereof and any improvements or other modifications thereto.
4.2 By participating in a Beta Program or using the Beta Services, you shall not, and shall not permit, assist or enable any third party to, (i) infiltrate, hack, reverse engineer, decompile, or disassemble, or otherwise seek to obtain the source code for any component of, the Beta Services or any part thereof for any purpose, or attempt to do any of the forgoing; (ii) represent to any person that you possess any proprietary interest in the Beta Services; (iii) directly or indirectly challenge or otherwise contest the validity or enforceability, or Forter’s ownership of the Beta Services; (iv) use the Beta Services other than expressly permitted under these Beta Terms and the Beta Terms of Service; (v) access or use the Beta Services in any manner that infringes, misappropriates or otherwise violates the intellectual property or other rights of any third party or any applicable law or regulation; (vi) copy, modify, duplicate or scrape (by any manual or automated means) any features, functions, graphics or other part of the Beta Services, or use the Beta Services or any other data, documentation or information provided to to you in connection with the Beta Program and/or Beta Services to build a similar or competitive product or service; (vii) damage, interfere with or disrupt the integrity, performance or security of the Beta Services; (viii) conceal, remove or alter any copyright, trademark and other proprietary notices contained on or in the Beta Services; or (ix) introduce any virus, worm or other malicious code into the Beta Services.
5. Modification and Termination
5.1 Forter reserves the right to modify or terminate the Beta Program and/or the Beta Services, or to limit or deny access to the Beta Services and/or Beta Program, at any time, in our sole discretion.
5.2 These Beta Terms will remain in effect for as long as you use the Beta Services, or until such time that you sign a written contract with Forter for use of the Beta Services that expressly overrides these Beta Terms.
5.3 These Beta Terms will automatically terminate upon any breach by you of any of your obligations hereunder, including breach of confidentiality obligations. Your breach of any of your obligations under your MSA with Forter may result in your immediate suspension or termination from use of the Beta Services or other Forter services.
6. Disclaimer of Warranties; Limitation of Liability; Indemnification
6.1 YOU HEREBY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE BETA SERVICES PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND FORTER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES – STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY, AND INCLUDING REPRESENTATIONS WITH RESPECT TO PERFORMANCE OR IMPACT ON REVENUE. FORTER FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE BETA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ERRORS WILL BE CORRECTED, OR THAT THE BETA SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS. YOU ACKNOWLEDGE THAT THE BETA SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FORTER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6.2 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL FORTER OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF DELAY, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THESE BETA TERMS, THE BETA PROGRAM AND/OR THE BETA SERVICES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT FORTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FORTER’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS ARISING UNDER, OUT OF OR RELATING TO THESE BETA TERMS IS LIMITED TO USD $100.00.
6.4 You agree to hold harmless and indemnify Forter, its affiliates, and its and their, officers, directors, agents, and employees from and against any third party claim arising from or in any way related to (i) your breach of the Beta Terms, (ii) your use of the Beta Services and/or your participation in the Beta Programs, or (iii) your violation of applicable laws, rules or regulations in connection with the Beta Services.
7. General
7.1 Other than as explicitly set forth herein, all terms in the MSA, including those related to confidentiality, data protection, export control, force majeure, and other general provisions set forth in the MSA shall apply with respect to the Beta Program and Beta Services. Without limiting the foregoing, you acknowledge and agree to keep all Forter data and information discussed and/or made available through or contained in Beta Program and/or Beta Services strictly confidential, and not share information about the Beta Program or Beta Services with anyone other than other authorized users of the Beta Services. In the event of a conflict or inconsistency between these Beta Terms and the MSA, these Beta Terms shall control.
7.2 Forter reserves the right to make changes to these Beta Terms from time to time and may or may not notify you of such changes. You acknowledge and agree that if you use the Beta Services after the date on which the Beta Terms have changed, we will treat your use as acceptance of the updated Beta Terms.
7.3 These Terms shall be governed by the laws of the State of New York, without regards to its conflict of laws principles, and any dispute arising from these Terms shall be brought exclusively before the courts of New York, NY.