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This Beta Services Agreement ("Agreement")

Our EULA was last updated on 18 April 2024.

Please read this Beta Services Agreement carefully before clicking any "I Agree" button, downloading or using Temper tools.

This Beta Services Agreement ("Agreement") is between Temper Systems, Inc., ("Temper"), and the Customer ("Customer") accessing or using the pilot SaaS product provided by Temper to Customer as a beta testing service ("Service"). By accessing and/or using the Service, or by clicking a button or checking a box marked "I Agree" (or something similar), you signify that you have read, understood, and agree to be bound by this Agreement. This Agreement shall continue in effect until terminated in accordance with Section 5 (the "Term"). There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

1 SAAS SERVICES AND SUPPORT

1.1 Services

Subject to the terms of this Agreement, Temper will use commercially reasonable efforts to provide Customer the Services on a pilot basis during the Term. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Temper account. Temper reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Subject to the terms hereof, Temper will use commercially reasonable efforts to provide Customer with reasonable technical support services in accordance with the Temper’s standard practice.

1.2 Pilot Testing

Customer and Temper acknowledge and agree that the Services are each pilot test "beta" versions that may contain bugs, defects and errors, or result in errors, and that the Services are not expected to function fully upon grant of access and use to Customer, even when used in accordance with this Agreement.

2 RESTRICTIONS AND RESPONSIBILITIES

2.1 Prohibited Use

Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Temper or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Customer will ensure that its end users comply with these restrictions as well as any and all other restrictions applicable to end users in this Agreement.

2.2 Customer Representations

Customer represents, covenants, and warrants that Customer

  • a. will use the Services only in compliance with Temper’s standard written policies provided in advance to Customer (the "Policy") and all applicable laws and regulations;
  • b. owns or otherwise has and will have the necessary rights in and relating to the Customer Data (as defined in Section 4) so that, as received by Temper and collected, used, disclosed and otherwise processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law;
  • c. the Customer Data is free of all viruses, Trojan horses, and other elements that could interrupt or harm the systems or software used by Temper or its Contractors to provide the Services;
  • d. all Customer Data has and will be collected by you in accordance with a privacy policy that permits Temper to share, collect, use, and disclose such Customer Data to the extent necessary for Temper to provide the Services and as otherwise contemplated under Section 4 of this Agreement, and if required by applicable law, pursuant to consents obtained by you to do each of the foregoing;
  • e. you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Customer Data provided hereunder;
  • f. Temper may exercise the rights in Customer Data granted hereunder without liability or cost to any third party; and
  • g. the Customer Data complies with the terms of this Agreement. Customer hereby agrees to indemnify and hold harmless Temper against any and all damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any and all claims or actions that arise from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Temper has no obligation to monitor Customer’s use of the Services, Temper may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.3 Equipment

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3 PROPRIETARY RIGHTS

3.1 License Grant

Subject to the terms and conditions of this Agreement, Temper hereby grants Customer, during the Term, a royalty-free, nonexclusive, nontransferable, non-sublicensable, limited, revocable license to:

  • a. access and use the Service; and
  • b. use products and documentation provided by Temper via the Service; in each case solely for Customer’s internal evaluation purposes and not for production use unless otherwise agreed by Temper.

3.2 Customer Data

Customer shall own all right, title and interest in and to the Customer Data, subject to the rights and permissions granted to Temper in this Section 3.2.

Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data:

  • a. to Temper, its suppliers, service providers, contractors and subcontractors ("Contractors") and personnel as are necessary or useful to perform, improve or provide the Services;
  • b. to Temper as described in Section 3.3 below; and
  • c. to Temper as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder. In addition, Temper may (x) compile statistical and other information related to the performance, operation and use of the Services, and (y) use data from the Services in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ("Service Analyses"). Temper may make Service Analyses publicly available, however, Service Analyses will not incorporate Customer Data in a form that could reasonably identify Customer or any specific individual. In addition, Temper shall not use Customer Data for any purpose other than as described above or in Section 3.3 without the prior written consent of Customer.

3.3 Temper Ownership

Temper shall own and retain all right, title and interest in and to

  • a. the Services and Software, all improvements, enhancements and modifications thereto and derivative works thereof,
  • b. any and all software, applications, inventions or other technology developed in connection with implementation services or support,
  • c. any documentation provided by Temper in relation to the Services and Software,
  • d. any and all data that is based on or derived from the Customer Data and provided to Customer as part of the Services or generated from the Services (including, without limitation, any and all models generated from such data), and
  • e. all intellectual property rights related to any and all of the foregoing.

Customer hereby grants Temper the right (during and after the Term hereof) to use, copy and analyze Customer Data solely in aggregate, de-identified and/or other anonymized form, so that it cannot reasonably be used to identify a specific individual or Customer, in order to improve and to train Temper’s artificial intelligence and machine learning capabilities. If Customer provides Temper with any suggestions, ideas, feedback, error identifications or other information related to the Service or Customer’s use and evaluation of the Service, whether on the Discord page related to the Services or otherwise, ("Feedback"), Customer hereby assigns to Temper all right, title and interest in and to all Feedback, including all intellectual property rights therein, and agrees to assist Temper in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.

4 CONFIDENTIALITY

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Temper includes, but is not limited to, the Software, any documentation related to the Services provided by Temper, and non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes, but is not limited to, non- public data provided by Customer to Temper (or received by Temper through Customer or its end users of Temper’s interaction with the Services) to enable the provision of the Services ("Customer Data"). For clarity, any submissions, posts or information made available by Customer through any Discord channels relating to the Services shall be Feedback and shall not be considered Confidential Information of Customer. The Receiving Party agrees: (x) to take reasonable precautions to protect such Proprietary Information, and (y) not to use (except in performance of the Services or as otherwise permitted herein) or disclose to any third party any such Proprietary Information (including Customer Data, in the case of Customer’s Proprietary Information); provided, however, that Temper may disclose Customer’s Proprietary Information to its officers, directors, advisors, employees and agents. Temper agrees to inform such third parties of the confidential nature of such Proprietary Information and to require them to treat such information in accordance with substantially similar terms to this Section 4.

The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof (except for trade secrets of the Disclosing Party, which the Receiving Party shall be required to protect for so long as they are protectable as trade secrets under applicable law) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or © was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law; provided that in such case the Receiving Party must give the Disclosing Party prompt notice and provide reasonable assistance to the Disclosing Party in its efforts to quash the order, obtain a protective order, or otherwise protect the confidentiality of such Proprietary Information. Notwithstanding the foregoing, the U.S. Defend Trade Secrets Act of 2016 ("DTSA") provides that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (1) files any document containing the trade secret under seal; and (2) does not disclose the trade secret, except pursuant to court order.

5 TERM AND TERMINATION

Customer may de-activate its account with the Service under this Agreement at anytime. Temper may, with or without prior notice, change the Service, stop providing the Service or features of the Service to Customer generally, or create usage limits for the Service. Temper may, with or without prior notice, permanently terminate or temporarily suspend access to the Service without liability, with or without cause, and for any or no reason, including if, in our sole determination, you violate any provision of this Agreement. Upon their termination for any reason or no reason, you continue to be bound by this Agreement.

6 DISCLAIMERS

Customer and Temper agree that the Service is provided "AS IS" and on an "AS AVAILABLE" basis, and Temper makes no warranty as to the Service. Customer further acknowledges and agrees that: (a) use of the Service is entirely at Customer’s own risk; (b) the Service does not guarantee compliance with any laws; © the Service does not contain official products that have been commercially released for sale by Temper; (d) the Service is not in final form and may contain errors, design flaws or other problems; (e) the Service is not expected to function fully or adequately, and it is expected and anticipated that further testing, modification and development will be necessary to make the Service functional; (f) it may not be possible to make the Service functional; (g) use of the Service may result in unexpected results, loss of data, project delays or other unpredictable damage or loss to Customer; and (h) Temper is under no obligation to release and/or offer for sale a commercial version of the Service, and Temper has the right to unilaterally abandon development of the Service at any time and without any obligation or liability to Customer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TEMPER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE RELATED TO THE SERVICE, ITS USE OR ANY INABILITY TO USE THEM, THE RESULTS OF USE, AND THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TEMPER OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. DUE TO THE NATURE OF MACHINE LEARNING, THE OUTPUT DERIVED FROM THE SERVICES ("OUTPUT") MAY NOT BE UNIQUE ACROSS USERS AND THE ARTIFICIAL INTELLIGENCE PRODUCTS AVAILABLE VIA THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USE OF ARTIFICIAL INTELLIGENCE PRODUCTS MAY RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REALITY. CUSTOMER MUST EVALUATE THE ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT. CUSTOMER UNDERSTANDS AND AGREES THAT THE OUTPUT MAY CONTAIN "HALLUCINATIONS" AND MAY BE INACCURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO CUSTOMER’S PURPOSE, AND CUSTOMER AGREES THAT THE OUTPUT IS PROVIDED "AS IS" AND TEMPER SHALL NOT BE LIABLE FOR ANY DAMAGES THAT CUSTOMER OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH ANY ARTIFICIAL INTELLIGENCE PRODUCTS.

7 LIMITATION OF LIABILITY

IN NO EVENT WILL TEMPER BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL AND INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, THE RESULTS OF USE, OR THE INABILITY TO USE THE SERVICE, EVEN IF TEMPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TEMPER WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY. CUSTOMER AGREES THAT IT WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SERVICE. IN NO EVENT WILL TEMPER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ONE HUNDRED U.S. DOLLARS ($100 USD).

8 MISCALLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Temper’s prior written consent. Temper may transfer, assign and subcontract any of its rights and obligations under this Agreement without consent. In addition, Temper has the right to use Contractors (such as its web hosting provider) in providing the Services under this Agreement without consent. The parties acknowledge and agree that this Agreement may be executed by electronic signature or in counterparts and delivered by means of an electronic image scan (such as a PDF file), each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. To the extent and terms in this Agreement conflict with any terms in other agreements or terms of service that exist between Temper and Customer, the terms of this Agreement shall control. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Temper in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.

Contact Us

If you have any questions about this Agreement, You can contact Us:

  • By sending us an email: private-beta@temper.systems