These Terms of Service (“Terms”) are between the entity or entities specified in Section 10.12, individually and not jointly (“Demio, INC”), and the customer, on behalf of itself and its applicable Affiliates (“Customer”). The authorized party signing or electronically submitting the Order or accessing the Services represents that it has the authority to bind the Customer and understands and agrees to the Order, these Terms, and the applicable Service Descriptions (collectively the “Agreement”).
1. DEFINITIONS. As used in the Agreement, the following defined terms shall apply:
1.1. Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, whether through majority ownership of voting securities or equity interests.
1.2. Demio, INC Marksmeans any name, logo, or mark belonging to Demio, INC or its affiliates.
1.3. Customer Content means any files, documents and other information belonging to Customer or users as uploaded to Customer’s Service account for storage and/or sharing with third parties, and is not related to Demio, INC servicing or accessing Customer’s account.
1.4. Effective Date means the earlier of the date (i) Customer submits the initial Order, or (ii) as stated on the signature block of the Order.
1.5. Order or Services Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to Demio, INC, a Demio, INC authorized reseller and/or through Demio, INC product websites.
1.6. Services means the generally available Demio, INC software-as-a-service offerings (“SaaS Services”), as further described in the Service Descriptions. Demio, INC may update the Services at any time and all Services set forth in the Service Descriptions may not be available to all Customers. The Services are for professional/business use only.
1.7. Service Descriptions means the overview and other terms applicable to the Services, as amended from time to time, and found at Service Descriptions.
1.8. Updates means any corrections, bug fixes, new features or functions added to the Services, but shall not include any new versions that Demio, INC markets and sells separately.
1.9. Use Level means the model by which Demio, INC measures, prices and offers the Service to Customer as set forth on the applicable price list, websites, Order, and/or Service Description.
2.2. Limitations on Use. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or Demio, INC technology; (ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Demio, INC networks, security systems, user accounts, or Services of Demio, INC or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful; (iv) market, offer to sell, and/or resell the Services to any unauthorized third party; (v) use the Services in violation of Demio, INC policies, applicable laws, ordinances or regulations; (vi) use the Services to send unsolicited or unauthorized advertising, junk mail, or spam; (vii) harvest, collect, or gather information or data regarding other users without their consent; (viii) transmit through or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, data privacy or right of publicity; (ix) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; (x) use the Services directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service; (xi) submit to, or store in the Services, any Protected Health Information (“PHI”) unless Customer has complied with Section 5.1 below; or (xii) make any representations with respect to Demio, INC or this Agreement (including, without limitation, that Demio, INC is a warrantor or co-seller of any of Customer’s products and/or services). Demio, INC shall have sole and exclusive discretion to determine applicability of the restrictions set forth above and any violations thereof.
2.3. Proprietary Rights. Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the Demio, INC Marks or Services or any components provided by Demio, INC in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that Demio, INC or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Demio, INC Marks and the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.
2.4. Demio, INC Marks. Unless expressly authorized under the terms of this Agreement, Customer agrees that it shall not use, register or apply for registration of any trademark, service mark, business name, company/trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any Demio, INC Mark, or is otherwise confusingly similar to a Demio, INC Mark. In the event of any breach of this provision, Customer agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company/trade name, domain name or social media account name or handle to Demio, INC, including but not limited to executing assignment documentation. Except as expressly granted herein, no license regarding the use of Demio, INC’s copyrights, patents, trademarks, service marks or company/trade names is granted or will be implied. For any authorized use of the Demio, INC Marks, Customer represents that it has reviewed and will adhere to Demio, INC’s Trademark & Copyright Guidelines, and incorporated herein by reference and as may be periodically updated by Demio, INC.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. Customer may order Services using the Demio, INC then-current ordering processes. All Orders are subject to acceptance by Demio, INC in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate and Customer is responsible for keeping such information updated. Order information is subject to automatic processing by Demio, INC for the purposes of managing Customer’s account.
3.2. Fees and Payment. Customer is responsible for all fees applicable to the Services, including any one-time implementation fees (“Fees”). All Fees are due and payable as set forth on the invoice and, unless otherwise agreed in writing, payments are due thirty (30) days from the invoice date. Customer agrees to notify Demio, INC of any fee dispute within fifteen (15) days of the invoice date and Customer agrees to work in good faith to promptly resolve any dispute and pay fees within fifteen (15) days following resolution of the dispute. When applicable, Customer authorizes Demio, INC (i) to take steps to determine whether a debit/credit card number provided is valid, and (ii) charge such card in accordance with the billing frequency specified in the Order. Demio, LLC reserves the right to terminate this Agreement immediately in the event any payment information is found at any time to be inaccurate, incomplete and/or not current. Demio, INC shall not be responsible for any overdraft charges or other fees that may be incurred due to Demio, INC use of Customer’s card for payment hereunder. Demio, INC will not agree to submit invoices via a customer procurement to pay online portal and/or Electronic Data Interchange (EDI) Portals. Demio, INC reserves the right to update the price for Services at any time after the Initial Term. Demio, INC will notify Customers of any price changes by publishing on its website, emailing, quoting or invoicing Customer. Price changes will be effective as of the next billing cycle.
3.3. Additional Services. Customer may order additional Services at any time. Unless otherwise agreed in the applicable Order, any additional Services ordered by Customer following the Effective Date are subject to these Terms, and shall be coterminous with the Term for existing Services.
3.4. Late Payments. Demio, INC reserves the right, in its discretion, to (i) suspend or terminate the Services or any portion thereof for non-payment of undisputed Fees, and (ii) impose a charge to restore archived data from delinquent accounts. Customer agrees to reimburse Demio, INC for all reasonable costs and expenses incurred in collecting delinquent amounts.
3.5. Taxes and Withholding. Customer shall be responsible for all applicable taxes (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), tariffs, Universal Services Fund (USF) fees (if applicable to the Audio Services only) and/or duties) (collectively, “Taxes”) imposed by any government entity or collecting agency based on the Services, except those Taxes based on Demio, INC net income, and/or those Taxes for which Customer has provided a certificate confirming Customer is otherwise exempt. If Customer fails to satisfy its Tax obligations herein, Customer agrees to reimburse Demio, INC for any Taxes paid on Customer’s behalf and indemnify and hold Demio, INC harmless against any claim, liability and/or penalties resulting therefrom.
4. TERM AND TERMINATION.
4.1. Term. These Terms shall apply as long as any Order is in effect. The period that Customer may access and use the Services (“Term”) shall be as specified in the Order and may include an initial period (“Initial Term”) and a renewal period (“Renewal Term”). If no Term is specified in the Order, then the Initial Term shall commence on the Effective Date for a twelve (12) month period, and thereafter shall automatically renew for additional twelve (12) month Renewal Terms on each anniversary thereof, unless either party provides notice of non-renewal thirty (30) days prior to expiration of the then-current term.
4.2. Termination for Convenience. . During any Renewal Term, either party may terminate at any time with prior written notice and such termination shall be effective at the end of (i) thirty (30) days or (ii) Customer’s current billing cycle, whichever is earlier. Customer must submit written notice of termination to Demio, INC at Support@Demio.com or otherwise in accordance with the applicable Service Description.
4.3. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches any of its material obligations under the Agreement and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, or (iii) immediately for a breach by Customer of Section 2 or Section 5.
4.4. Effect of Termination. Upon termination of the Agreement for any reason, Customer will immediately discontinue all access and use of the Services. Demio, INC has no obligation to maintain Customer Content following termination and, in any event, will destroy or delete Customer Content within thirty (30) days of Customer request, subject to compliance with Demio, INC policies and applicable law. Neither party shall be liable for any damages resulting from termination of the Agreement; provided, however, termination shall not affect any claim arising prior to the effective termination date.
4.5. Survival. The provisions of Sections3 (Fees), 4.4 (Effect of Termination), 5 (Customer Content and Customer Accounts), 8 (Indemnification), 9 (Limitation of Liability), and 10.9 (Notices) shall survive any termination of the Agreement.
5. CUSTOMER CONTENT AND CUSTOMER ACCOUNTS.
5.1. Customer Content. Customer retains all rights to any and all of its Customer Content and Demio, INC shall not own or license any data, content, information or material in such Customer Content. Each party shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards, and Customer shall retain a current copy of Customer Content outside the Services. Demio, INC will not monitor Customer’s or its user’s use of the Services, and Demio, INC will not view, access or process any Customer Content, except: (i) for the sole purpose of providing the Services, (ii) as directed or instructed by Customer and its users, and/or (iii) for compliance with Demio, INC policies, applicable law, regulation, or governmental request. Customer shall comply with all intellectual property laws related to the Customer Content and legal duties applicable to Customer as a data controller by virtue of the submission or storage of Customer Content within the Services, including providing all information or notices Customer is required by law to provide to users and obtain consent of the users, where required.
5.2. Customer Accounts. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, conference codes, passwords and personal identification numbers used in conjunction with the Services, and (v) all uses of the Services by Customer and its users. Demio, INC reserves the right to suspend the Services or terminate the Agreement if Customer misuses or otherwise shares login information among users. Customer will notify Demio, INC immediately of any unauthorized use of its account or any other breach of security. Demio, INC will not be liable for any loss that Customer may incur as a result of a third party using its password or account, and Customer may be held liable for any such losses incurred by Demio, INC and/or another party. Demio, INC reserves the right to review Customer’s account to confirm compliance with applicable Use Levels, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.
6. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations. Specifically, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required. Notwithstanding any other provision in this Agreement, Demio, INC shall have the right to immediately terminate this Agreement for noncompliance with applicable laws.
7. WARRANTIES. Demio, INC WARRANTS THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. Demio, INC DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED. Demio, INC ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT Demio, INC SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICE OR TO TERMINATE THE NON-CONFORMING SERVICES AND THIS AGREEMENT OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Demio, INC DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS.
8.1. Indemnification by Demio, INC. Subject to Sections 8.2 and 8.3 below, Demio, INC shall indemnify and defend Customer against any third party Infringement Claim brought against Customer, and pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to such Infringement Claim; provided that: (i) Customer promptly notifies Demio, INC in writing of an Infringement Claim such that Demio, INC is not prejudiced by any delay of such notification; (ii) Demio, INC will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Customer will provide reasonable assistance in the defense of same. Demio, INC will reimburse Customer for reasonable expenses incurred in providing such assistance. Demio, INC shall not enter into any settlement agreement which imposes any obligation on Customer without Customer’s prior written consent. For the purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against a Customer based on an allegation that the Services, as used by Customer in accordance with this Agreement and the applicable documentation, infringes upon any patent, copyright or violates any trade secret rights of any third party.
8.2. Infringement Cures. If Customer’s use of any of the Services is, or in Demio, INC’s opinion is likely to be, enjoined as a result of an Infringement Claim, Demio, INC shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) above are not reasonably available, Demio, INC may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Fees.
8.3. Limitation. Demio, INC assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer’s access to and/or use of the Services following notice of an Infringement Claim; (ii) any modification of the Services by Customer or at its direction; (iii) Customer’s combination of the Services with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by Demio, INC or involving any marking or branding applied at Customer’s request.
8.4. Exclusive Remedy. THE FOREGOING STATES Demio, INC SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
8.5. Indemnification by Customer Customer shall indemnify and defend Demio, INC against any third party claim brought against Demio, INC resulting from a breach of Section 2. or 5.2 or alleging that any Customer Content submitted by Customer infringes upon any patent or copyright, or violates trade secret or privacy rights of any party, and shall pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim; provided that: (i) Demio, INC promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification, (ii) Customer will have sole control over the defense and any settlement of any such claim, and (iii) Demio, INC will provide reasonable assistance in the defense of same. Customer will reimburse Demio, INC for reasonable expenses incurred in providing such assistance. Demio, LLC may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, Demio, INC shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.
9. LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (I) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. EXCEPT FOR (a) A PARTY’S INDEMNIFICATION OBLIGATIONS (b) A BREACH BY CUSTOMER OF SECTIONS 2 OR 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.
10. ADDITIONAL TERMS.
10.1. Services Trial. Demio, INC may make the Services available to Customer on a trial basis or offer promotional versions of the Services for a limited period of time (“Trial Period”), as specified on the applicable Order. The Trial Period shall terminate (i) at the end of the stated Trial Period, or (ii) if no such date is specified, thirty (30) days from the date of Customer’s initial access to the Services. Following expiration of the Trial Period, the Services may automatically continue unless cancelled by Customer, and Customer is responsible for payment of the applicable Fees set forth in the Order. During the Trial Period, Demio, INC provides the Services “AS IS” and without warranty or indemnity, to the extent permitted by law, and all other terms of this Agreement otherwise apply. Demio, INC reserves the right to modify or discontinue any trials or promotions at any time without notice.
10.2. Beta or Labs Services. Customer acknowledges that Beta or Labs Services are offered “as-is”, without warranty or indemnity of any kind and Customer’s access to and use of the Beta Services is at Customer’s sole risk. The Beta or Labs Services may contain bugs, errors and other defects. To the extent permitted by applicable law, Demio, INC disclaims any warranties and conditions, whether express, implied, statutory or otherwise, and any liability with respect to the Beta or Labs Services. Customer agrees to receive correspondence and updates from Demio, INC related to the Beta or Labs Services and acknowledges that opting out from such communications may result in cancellation of Customer’s Beta or Labs Services. Demio, INC does not make any representations, promises or guarantees that the Beta or Labs Services will be publicly announced or made generally available. Demio, INC has no obligation to provide technical support or continued availability of any particular Beta or Labs Service or feature which can be cancelled at any time by Demio, INC in its sole discretion with or without notice to Customer. Customer may be asked to provide feedback regarding Customer’s experience and use (“Feedback”) of the Beta or Labs Service. Customer grants to Demio, INC an irrevocable, perpetual, royalty-free, worldwide license to use and incorporate any Feedback into any Demio, INC product or service (including the Beta or Labs Services) for any purpose. With respect to the Beta or Labs Services, these terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
10.3. Copyright. In the event Customer believes that the Services have been used in a manner that constitutes copyright infringement, Customer shall notify Demio, INC at Support@Demio.com, and provide all of the following information, as required by the Digital Millennium Copyright Act ("DMCA"): (i) a statement that Customer has identified content in the Services that infringes a copyright of a third party for whom Customer is authorized to act; (ii) a description of the copyrighted work Customer claims has been infringed; (iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content's location; (iv) Customer’s name, address, telephone number, and e-mail address; (v) a statement that Customer has a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use); (vi) a statement that, under penalty of perjury, the information in Customer’s notice is accurate and that Customer is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and(vii) Customer’s electronic or scanned physical signature. Demio, INC reserves the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.
10.5. Suspension of Service. Demio, INC may temporarily suspend the Services if Demio, INC determines, in its sole discretion, that continued provision would compromise the security of the Services due to, without limitation, hacking attempts, denial of service attacks, mail bombs or other malicious activities, and Demio, INC will take action to promptly resolve any such security issues. Demio, INC agrees to notify Customer of any such suspension and subsequent reactivation of the Services.
10.6. High-Risk Use. Customer acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities, including but not limited to: medical procedures; on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility. Customer understands that the Services do not allow and should not be used for calls to emergency services numbers (e.g., in the United States 911, or in the United Kingdom 999 and 112). Demio, INC expressly disclaims any express or implied warranty of fitness for such purposes.
10.7. Recordings. Certain Services provide functionality that allows a Customer to record audio and data shared during collaboration sessions. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using recording functionality. Demio, INC expressly disclaims all liability with respect to Customer's recording of audio and/or shared data while using the Services, and Customer releases and agrees to hold Demio, INC harmless from and against any damages or liabilities related to the recording of any audio and/or data.
10.8. Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without such consent shall be void. This Agreement will bind and inure to the benefit of each party’s successors or assigns.
10.9. Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer, and the Demio, LLC contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii)five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified on the applicable Order and shall be deemed effective on the next business day following the date and time stamp on the sender’s email. Demio, INC may also provide Customer with notice postings on the Demio, INC website.
10.10. Entire Agreement; Order of Precedence. .This Agreement sets forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between an executed Order, these Terms and the Service Descriptions, the conflict shall be resolved in that order, but only for the specific Services described in the applicable Order. For any conflict between these Terms and any BAA, this Agreement shall control. Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify the Agreement or Demio, INC program terms. The Terms may be updated by Demio, INC from time to time without notice (but will be identified by the last updated date) and may be reviewed at Terms of Service. Customer’s continued access to and use of the Service constitutes acceptance of the then-current Terms.
10.11. General Terms. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between or among the parties. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. Demio, INC authorized resellers and distributors do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Demio, INC. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by each party. Demio, INC failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. This Agreement may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay, interruption or other failure to perform under this Agreement due to force majeure events and acts beyond a party’s reasonable control, but only for so long as such conditions persist. Force majeure events may include: natural disasters; wars; terrorist activities, activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers, labor disputes; and acts of government.
11. DEMIO BETA PERIOD TERMS.
11.1. GRANT OF LICENSE. Demio, Inc grants Customer a temporary, non-exclusive, nontransferable, revocable Demio account to use as Pre-Release Software by Customer at Customer’s primary business location solely for the purpose of evaluating and beta testing the Pre-Release Software as requested or directed by Demio, Inc during the Term (as defined in Section 3, below). For the avoidance of doubt, this Agreement and the license grant in this Section 1 shall have no impact on software separately licensed by Customer from Demio, Inc pursuant to a separate agreement.
11.2. IDEAS. Participant will test and evaluate the Pre-Release software. Customer shall promptly notify Demio, Inc of any problems or defects encountered in the Pre-Release Software or ideas for enhancements or changes to the Pre-Release Software (collectively, “ Ideas”). By providing such Ideas, whether such Ideas are conceived of or provided to Demio, Inc during the Term of after, Customer grants to Demio, Inc a worldwide, royalty-free, irrevocable and exclusive license, with the right to sublicense, to use and disclose the Ideas in any manner Demio, Inc chooses and to display, perform, copy, make, have made, use, sell, and otherwise dispose of Demio, Inc’s and its sublicensee’s products embodying such Ideas in any manner and via any media Demio, Inc or its sublicensees choose, without reference or obligation of any kind to Customer.
Customer warrants that it will not give Demio, Inc any Idea: (i) that Customer has reason to believe is subject to any patent, copyright, or other intellectual property claim or right of a third party; or (ii) subject to license terms that seek to require any Demio, Inc product incorporating or derived from any Idea, or other Demio, Inc intellectual property, to be licensed to or otherwise shared with any third party.
11.3. TERM. This Agreement is effective from the Effective Beta Date and expires on the earlier of the conclusion of the Beta period specified by Demio or the date terminated by either Party as permitted herein (“ Term” ). Demio, Inc may unilaterally extend the Term by email or written notice to Customer. For the avoidance of doubt, the conclusion of the Term or termination of this Agreement for any reason shall not relieve Customer of its obligations related to Ideas, as provided in Section 2, above.
11.4. TERMINATION. Customer may terminate this Agreement by notifying Demio, Inc in writing and complying with its obligations hereunder. Demio, Inc may terminate this Agreement upon email notice to Customer. Sections 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive the termination of this Agreement for any reason or for expiration of the Term.
11.5. OBLIGATIONS UPON TERMINATION. Within one (1) business day following termination of this Agreement for any reason, including the expiration of the Term, Customer shall: (i) cease all usage of the Pre-Release Software; (ii) destroy and erase from computer memory or return to Demio, Inc the Pre-Release Software and any copies thereof; (iii) return to Demio, Inc or destroy all Confidential Information (as set forth in Section 7) and copies thereof; (iv) return to Demio, Inc or destroy all copies of materials relating to the Pre-Release Software, Confidential Information, or Ideas; and (v) provide to Demio, Inc any Ideas conceived of but not provided to Demio, Inc. Customer shall, upon request from Demio, Inc, provide Demio, Inc with written certification that it has complied with these requirements within three (3) business days of such request.
11.6. LICENSE RESTRICTIONS. The license granted herein by Demio, Inc to Customer does not grant Customer the right to, and Customer agrees not to: (i) sublicense, transmit, rent, lease, distribute, disclose, or otherwise transfer or permit use of the Pre-Release Software by any third party; (ii) reverse engineer, decompile, or disassemble the Pre-Release Software; (iii) take any action in an attempt to derive the source code or underling ideas, algorithms, structure, or organization of the Pre-Release Software; (iv) make copies of the Pre-Release Software; (v) create any derivative works of the Pre-Release Software; (vi) use the Pre-Release Software in a production environment or for any external or commercial purpose, (vii) use the Pre-Release Software on behalf of any party other than Customer; (viii) export the Pre-Release Software; or (ix) use the Pre-Release Software or Confidential Information in any manner that violates applicable law.
a. Definition. Demio, Inc may disclose to Customer certain confidential, proprietary, and trade secret information of Demio, Inc (“ Confidential Information”). Confidential Information includes without limitation, information Customer receives or has received from Demio, Inc that is related to the Pre-Release Software or the Program, that is designated as confidential by Demio, Inc, or that, given the nature of the information, should reasonably be assumed to be confidential. Confidential Information also includes without limitation, Ideas, the Pre-Release Software and all copies thereof, as well as computer programs, flowcharts, diagrams, manuals, documentation, development tools, marketing information, financial information, business plans, results of the beta testing, problems identified as a result of the beta testing, and Ideas. Confidential Information does not include those things that Demio, Inc designates or identifies as not being subject to this Agreement or that are: (i) publicly available other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of any obligation of confidentiality; (iii) independently developed by Customer without access or reference to the Confidential Information, as demonstrated by written records in Customer’s possession ; or (iv) known to Customer at the time of disclosure without breach of this Agreement, as demonstrated by written records in Customer’s possession.
b. Protection of Confidential Information.
Customer agrees to use the Confidential Information only during the Term and solely for the purpose of participation in the Program. Customer agrees to take all steps reasonably necessary to maintain and protect the secrecy of the Confidential Information for the benefit of Demio, Inc. Customer agrees to refrain from disclosing Confidential Information to third parties, including without limitation, consultants, advisors, and contractors, and agrees to only disclose the Confidential Information to its own employees with a need to know the Confidential Information and who are
made aware of and agree to the confidentiality obligations provided by this Agreement. Customer acknowledges that unauthorized disclosure of the Confidential Information could diminish the value to Demio, Inc of proprietary interests that are the subject of this Agreement. If Customer breaches any obligations hereunder, Demio, Inc may be entitled to seek equitable relief to protect its interests therein, including but not limited to injunctive relief, in addition to any and all other rights and remedies, including monetary damages, available at law or equity. Customer waives any requirement that Demio, Inc post security in order to seek injunctive relief related to this Agreement.
11.8. RESTRICTION ON DEVELOPMENT.
This Agreement does not entitle Customer to use the Pre-Release Software, Confidential Information, Ideas, Assets, or any technology or intellectual property contained therein, as reference or inspiration for developing or creating a product or service.
a. Headings and Interpretation. The headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. The Parties acknowledge that they
have agreed to this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed consistent with the joint drafting of this Agreement by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
b. Survival and Severability. If any provision of this Agreement shall be held invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make
it valid and enforceable and most closely approximate the intent and economic effect of the invalid provision, and the validity and enforcement of all other provisions in this Agreement shall not be affected thereby.
Sections 1 through 9 shall survive termination of this Agreement.
c. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between Demio, Inc and Customer relating to the subject matter hereof, and supersedes all oral or written
communications, proposals, representations, negotiations, commitments, understandings, or agreements not specifically incorporated herein.