Terms and conditions
This License Agreement (including all referenced attachments, this “Agreement”) is entered into on the Order Effective Date identified in the applicable Order (defined below) between Swivel Demos Inc., dba Demoflow, a Delaware corporation (“Demoflow”), and the customer identified in the Order (“Customer”). If no formal “Order” is signed by both parties, the Order Effective Date is the date that the Customer first uses Demoflow. Customer’s use of Demoflow constitutes agreement to the terms and conditions set forth in this License Agreement. The parties agree as follows.
- Demoflow Offerings. Subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees (defined below), Demoflow will provide the Offerings (defined below) set forth in one or more mutually agreed upon written orders (each an “Order”) specifying the licenses to Demoflow’s desktop software application (the “Software”), access rights to the Demoflow software-as-a-service web-based platform (the “Platform”), support services (“Support”), and professional services (“Professional Services” and, together with Support, “Services”) ordered by Customer under this Agreement (collectively, the “Offerings”). To the extent of any conflict between this Agreement and an Order, this Agreement will control, except to the extent an Order expressly identifies a provision of the Agreement to be superseded by the Order. Demoflow may offer Customer the ability, via the Offerings, to integrate with certain third-party services (such as calendaring and scheduling services, CRM services, and document management platforms) (each an “Integration”). Customer’s use of such Integrations is subject to such third parties’ terms and conditions for such services (collectively, the “Integration Policies”). Customer acknowledges and agrees Demoflow makes no recommendations, representations, or warranties regarding such Integrations and will have no liability relating thereto.
- License. Subject to the terms of this Agreement, and to the extent ordered under an Order, Demoflow hereby grants Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable license, in accordance with the documentation made available by Demoflow (“Documentation”): (a) to download, install, execute, display, and otherwise use the Software, and (b) to access and use the Platform, in each case subject to any usage limitations (such as number of Users) described in the applicable Order for which Demoflow will provide access.
- Users. Subject to the terms and conditions of this Agreement, Customer may permit its employees contractors, authorized representatives, and Audience Users (defined below) (each a “User”), to access and use the features and functions of the Offerings as contemplated by this Agreement. For the purposes of this Agreement, an “Audience User” means a user permitted by a Customer employee, contractor, or authorized representative to use the Offerings, generally for a limited purpose (e.g., to access and download certain materials as a prospect, authorized by a Customer sales representative). Customer is responsible for all acts and omissions of Users. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Offerings, and will notify Demoflow promptly of any such unauthorized access or use known to Customer. Solely for purposes of Section 4 (Fees and Taxes) and the calculation of Fees under an Order or SOW, “User” will not include any User that is solely an Audience User.
- Restrictions. Customer may use the Software ordered by Customer (as reflected in an Order) solely for Customer’s internal business purposes. Customer will not: (a) modify, make derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Offerings; (b) use, evaluate, or view the Offerings for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Offerings; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or otherwise allow the use of the Offerings (or Documentation) for the benefit of any unauthorized third party; (d) allow any third party to access the Offerings (or Documentation), except as expressly allowed herein; or (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Offerings or Documentation (or any copies thereof).
- Delivery, Acceptance, and Installation of Software. With respect to on-premise or private cloud deployments (if and as set forth in the applicable Order), Demoflow will deliver to Customer a download link which Customer may use to access the Software via electronic download. Customer is responsible for installing the Software in accordance with the Documentation and any installation instructions provided by Demoflow. Delivery will be deemed complete upon the delivery of the download link to Customer.
- Hosting. Demoflow will, at its own expense, provide for the hosting of the Platform, provided, however, that the Customer will, at its own expense, provide for any telecommunications or computer network hardware required by Customer or to access the Platform from the Internet.
- Support. Subject to the terms and conditions of this Agreement, Demoflow will provide its standard technical support services to Customer. Any Support will be provided in a professional manner and in accordance with industry standard practices.
- Professional Services. Where the parties have agreed to Demoflow’s provision of Professional Services, the details of such Professional Services will be set out in a statement of work (each an “SOW”) attached to the applicable Order. Each SOW will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Any Professional Services ordered by Customer pursuant to an Order will be provided in a professional manner and in accordance with industry standard practices.
- Order Changes. Customer may at any time request a modification to the Services to be performed pursuant to an applicable Order and/or SOW by written request to Demoflow specifying the desired modifications. Demoflow will, within a reasonable time following receipt of such request, submit an estimate of the cost or increased Fees for such modifications and a revised estimate of the time for performance of the Services pursuant to a newly prepared Order and/or SOW. If accepted in writing by Customer, such modifications in an Order and/or SOW shall be performed under the terms of this Agreement. Modifications in any Order and/or SOW shall become effective only when a written change request is executed by authorized representatives of both parties. Customer shall make available in a timely manner at no charge to Demoflow all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of Customer reasonably required by Demoflow for the performance of the Services as specified in an applicable Order and/or SOW.
- Customer Data. For the purposes of this Agreement, “Customer Data” means all data, information, works, or other content provided to Demoflow or its contractors by or for Customer or its Users in connection with Customer’s use of the Offerings (including, but not limited to, imported to the Software or the Platform by or on behalf of Customer or via any Integrations), and all data and information in all reports provided by the Offerings to Customer. Customer exclusively owns and retains all rights, title, and interest in and to Customer Data, except for pre-existing Offerings components contained in such Customer Data (e.g., report templates). Customer hereby grants to Demoflow and its authorized representatives and contractors a non-exclusive and non-transferable right and license to use, process, store, transmit, and disclose Customer Data solely to provide the Offerings to Customer and fulfill other obligations described in this Agreement. Customer further authorizes Demoflow to anonymize Customer Data, to aggregate Customer Data with similar data from other Demoflow customers in a manner that does not identify Customer, and to use such data to further develop and provide the Offerings. Customer represents and warrants that it has the authority to (a) disclose to Demoflow, and to permit Demoflow to collect and process, Customer Data and Usage Data (including, but not limited to, via the Integration) in connection with, and in accordance with, this Agreement.
- Limited License. The Offerings are licensed, not sold. Demoflow and its suppliers exclusively own and retain all rights, title, and interest in and to the Offerings (including the Software and Documentation therein) and all additions and modifications to the Offerings, including all intellectual property rights therein. Notwithstanding anything to the contrary in this Agreement, no license or right is granted in this Agreement except as specifically and expressly stated herein.
- Usage Data. Demoflow may collect and analyze certain data and other information relating to the provision, use, and performance of various aspects of the Offerings and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) (“Usage Data”), and Customer acknowledges and agrees that Demoflow may (during and after the Term) to (a) internally use such Usage Data, and (b) disclose such Usage Data solely in aggregate or other de-identified form in a manner that does not identify Customer or include any Personal Data (defined below), in each case to further develop and provide products and services for Demoflow customers.
- Customer Name and Logo Use. During the Term, Demoflow may include Customer’s name and logo in Demoflow’s standard marketing materials and customer lists.
- Open Source Software. Certain items of independent, third-party code may be included in the Software that are subject to “open source” or “free software” licenses (“Open Source Software”) and may be owned by third parties. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software.
- Feedback. If Customer provides any feedback, comments, or ideas to Demoflow regarding the Offerings or improvements thereto (“Feedback”), Customer hereby grants Demoflow a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use such Feedback for its lawful business purposes, including, without limitation, to incorporate the Feedback into Demoflow’s Offerings.
Term and Termination.
- Term. The term of this Agreement will commence on the Order Effective Date of the first applicable Order under this Agreement, and remain in effect for the Initial Service Term set forth in the applicable Order (the “Initial Term”), and thereafter shall automatically renew for periods of equal duration to the Initial Term unless either party provides the other party written notice of its intention not to renew at least sixty (60) days before the end of the then-current Term (each a “Renewal Term,” and together with the Initial Term, the “Term”).
- Termination for Cause. Either party may terminate this Agreement upon written notice if the other party is in material breach of this Agreement and such breach remains uncured for thirty (30) days following the breaching party’s receipt of written notice of such breach.
- Effect of Termination. Termination of this Agreement will result in the termination of any and all Orders then in effect. Upon expiration or termination of this Agreement for any reason, (a) the rights and licenses granted to Customer hereunder will cease, (b) Customer will promptly discontinue all use of the Software, and (c) Customer must immediately destroy any locally installed Software and all Documentation and all copies thereof (including copies stored in computer memory). With respect to a private cloud deployment, as reflected in an Order, Customer will promptly cease the hosting of the Software via its third party hosted services provider. Customer will, upon Demoflow’s request, certify in writing the complete destruction of all copies of the Software and Documentation. Termination of the Agreement will be without prejudice to either party’s rights to seek recovery of damages or pursue any other remedies it may have hereunder or under applicable law.
- Survival. Sections 1.4, 2, 3.3, 3.4, 4, and 5-10 of this Agreement, will survive the expiration or termination of this Agreement for any reason.
Fees and Taxes.
- Fees. The fees for the Offerings will be set forth in each Order (“Fees”) and Customer will pay all such Fees in accordance with the terms of this Agreement and the applicable Order. Unless otherwise set forth in the applicable Order, all Fees due hereunder will be paid monthly in advance, are non-refundable, will be paid in U.S. dollars, and will be due within thirty (30) days of the date of the invoice therefore. Should Customer require a PO to purchase, such PO must be issued within ten (10) days of the Order Effective Date. Demoflow may increase the Fees by giving Customer notice, and such increased Fees will not apply until the first Renewal Term that starts at least thirty (30) days after such notice.
- Taxes. Demoflow’s Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes on Demoflow’s net income. If Demoflow has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, Demoflow will invoice Customer and Customer will pay that amount unless Customer provides Demoflow a valid tax exemption certificate from the appropriate taxing authority. Customer is responsible for payment of all taxes associated with fees due under the Agreement, other than U.S. taxes assessed on Demoflow’s net income or personal property. All amounts payable shall be paid in full in U.S. dollars, free and clear of any deductions or withholdings of any kind, except for those required by any law or regulation binding on Customer. If Customer is legally obligated to make any deduction or withholding from any payment under this Agreement, it shall also pay whatever additional amount is necessary to ensure that Demoflow receives the full amount otherwise receivable had there been no deduction or withholding obligation.
Each party acknowledges that the Confidential Information (as hereinafter defined) of the other party may contain information valuable to the Disclosing Party, and each party that receives such Confidential Information (the “Receiving Party”) from the other party (the “Disclosing Party”) agrees that Confidential Information will remain the property of the Disclosing Party. Receiving Party will not make use of Disclosing Party’s Confidential Information, except as authorized by this Agreement and to the extent necessary for performance or enforcement of this Agreement; and Receiving Party will not disclose Disclosing Party’s Confidential Information to any third party, except to such Receiving Party’s employees and contractors who need to know such information in order for such party to perform this Agreement and only to the extent they are bound by confidentiality and non-use obligations not less restrictive than this Agreement. “Confidential Information” means all information that is, or should be reasonably understood to be, confidential or proprietary information of the Disclosing Party (and its suppliers, contractors, and customers), including without limitation information concerning its business, products, services, finances, employees, contractors, software, notes, documentation, tools, processes, protocols, product designs and plans, customer lists, and other marketing and technical information; and the terms of this Agreement, whether disclosed orally or in writing by any other media. Confidential Information of Demoflow includes all Software and Documentation included in the Offerings. Confidential Information of Customer includes Customer Data. Confidential Information excludes information that (a) is or becomes generally known to the public through no fault or breach of this Agreement by the Receiving Party; (b) is independently developed by a party without reference to or use of the Confidential Information of the other party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party; or (d) is rightfully obtained by a party from a third party without restriction on use or disclosure. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section with regard to disclosure of Confidential Information in response to an order or subpoena of a court, agency, or tribunal of competent jurisdiction, or pursuant to any applicable law or regulation, provided that the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure to the extent reasonably practicable and legally permissible, and makes a reasonable effort to assist the Disclosing Party in seeking confidential treatment of such information, including, without limitation a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed by used only for the purposes for which the order was issued, or for which the law or regulation required.
Representations and Warranties; Disclaimer.
- Warranties. Each party represents and warrants to the other party that (a) it has and will have full right and authority to enter into this Agreement and to grant the rights provided hereunder, (b) this Agreement will be enforceable against it, and (c) the entry into and performance of this Agreement by it do not contravene other agreements, laws, or orders to which it is subject. Customer represents and warrants that Customer will not make or publish any representations, warranties, or guarantees to any Users.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS REPRESENTATIONS AND WARRANTIES; DISCLAIMER SECTION, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE FOREGOING, DEMOFLOW DOES NOT REPRESENT OR WARRANT THAT THE OFFERINGS WILL MEET ALL OF CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED, SECURE, COMPLETE, ERROR-FREE, OR FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR THAT ALL DEFECTS WILL BE CORRECTED.
- By Demoflow. Demoflow will defend at its expense any suit brought against Customer, and will pay any settlement Demoflow makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party (a “Claim”) alleging that the Offerings infringe such third party’s intellectual property rights.
- By Customer. Customer will defend at its expense any suit brought against Demoflow, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a Claim (a) alleging that Customer’s or any User’s use of the Offerings fails to comply with applicable laws, rules, or regulations or the Integration Policies, or (b) arising out of or relating to Customer Data.
- Indemnification Procedure. Each party’s indemnification obligation above is subject in each instance to the indemnified party (i) promptly giving notice of the Claim to the indemnifying party; (ii) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party will have the right to approve any material liability imposed on and borne by the indemnified party in connection with such settlement); and (iii) providing to the indemnifying party all information and reasonable assistance related thereto.
- Exceptions. Notwithstanding the foregoing, Demoflow will not have any indemnification obligations pursuant to this Agreement to the extent any Claim arises from (i) use of the Offerings outside the scope of the rights granted to Customer in this Agreement; (ii) use of the Offerings with other products, software, or materials not furnished by Demoflow where the Offerings would not themselves be infringing; (iii) the modification or improvement of the Offerings by Customer or any third party; or (iv) any continued use by Customer of an allegedly infringing item or continued allegedly infringing activity by Customer after Demoflow has replaced or modified the item or instructed Customer to modify the activity so that it becomes non-infringing.
- Replacement or Modification. Should the use or provision of any Offerings or portion thereof be enjoined, threatened to be enjoined, or determined by Demoflow to be infringing any third-party intellectual property right, Demoflow will notify Customer and, at Demoflow’s expense Demoflow may: (a) procure for Customer the right to continue use of the Offerings as contemplated under this Agreement, (b) replace or modify the Offerings to be non-infringing while maintaining substantially the same features and functionality, or (c) if “(a)” or “(b)” are not economically feasible for Demoflow, then Demoflow will have the right to terminate the obligations with regard to such Offerings.
- Limitation of Liability. EXCEPT FOR BREACHES OF THE LICENSE, RESTRICTIONS, OR CONFIDENTIALITY SECTIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON THE BASIS OF WHICH ANY CLAIM FOR DAMAGES IS BROUGHT, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, OR STATUTE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO BREACHES OF THE CONFIDENTIALITY SECTION, OBLIGATIONS PROVIDED IN THE INDEMNIFICATION SECTION, AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE APPLICABLE ORDER FORM, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER UNDER OR RELATING TO THIS AGREEMENT EXCEED THE EQUIVALENT OF TWELVE (12) MONTHS OF FEES PAID OR PAYABLE FOR THE OFFERINGS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE LIABILITY.
- Compliance with Law. In performing its obligations or exercising its rights under this Agreement, each party will comply with all applicable laws, rules, and regulations at all times, including but not limited to any applicable laws, rules, and regulations of the United States and other jurisdictions relating to export or re-export of technology. In the course of providing the Offerings to Customer, Demoflow may receive and store information that can be used to uniquely identify, contact, or locate a natural person, including but not limited to name, address, email address, or phone number (“Personal Data”). Demoflow will safeguard the confidentiality of Personal Data in accordance with applicable data privacy laws, rules, and regulations and will not access or use such Personal Data other than as necessary to provide the Offerings to Customer and fulfill other obligations described in this Agreement. Demoflow receives and stores Personal Data solely as an agent acting on behalf of Customer.
- Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement.
- Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- Waiver. Neither party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of both parties. Except as otherwise set forth in this Agreement, no failure to exercise or delay in exercising any rights arising from this Agreement will operate or be construed as a waiver thereof.
- Force Majeure. With the exception of any monetary obligations under this Agreement, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by events beyond its reasonable control, including, without limitation, acts of God or any governmental body, war or national emergency, riots or insurrection, sabotage, embargo, fire, flood, accident, strike or other labor disturbance, or interruption of or delay in systems, power, or telecommunications under third-party control (“Force Majeure Events”).
- Notice. To be effective, any notice required to be given under this Agreement will be given in writing, addressed to the applicable party (at the address set forth in the Order) and hand delivered, which is effective upon delivery; sent by reputable overnight courier, which is effective on the business day following deposit with such courier; or sent by the United States mail, first class postage prepaid, which is effective on the third business day after deposit in the United States mail.
- Governing Law and Venue. This Agreement will be governed and construed in accordance with the laws of the State of Colorado without giving effect to any principles that may provide for the application of the law of any other jurisdiction. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, in each case located in the State of Colorado (except where such courts do not have jurisdiction), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. In the event of litigation arising out of this Agreement, the prevailing party will be entitled to its costs and reasonable attorneys’ fees.
- Assignment. Neither party may assign this Agreement or any right, interest, or benefit under this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement to a successor who acquires substantially all of the assets or equity of such party through purchase, merger, or other transaction without the other party’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement.
- Entire Agreement. This Agreement (together with any Orders and SOWs) constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and communications, whether oral or written, between the parties relating to the subject matter hereof, and all past courses of dealing or industry custom. Demoflow may modify this Agreement (other than the Order terms) at any time; provided, however, that Demoflow will provide Customer with at least thirty (30) days prior notice (email sufficient) of any material changes. Modifications become effective immediately upon your first access to or use of the Offerings after the “Last Updated” date at the bottom of this Agreement. Your continued access to or use of the Offerings after the modifications have become effective will be deemed your conclusive acceptance of the modified Agreement. Any standard terms associated with a Customer purchase order or other order document will be not binding on the parties and of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to Offerings provided under this Agreement. Similarly, any terms required to be accepted electronically through any Customer vendor enrollment, login, invoice submission, or other process will not apply to this Agreement, are expressly rejected by the parties, and form no basis for any agreement between the parties; notwithstanding any indication of “agreement” to such terms, no such agreement is formed between the parties and the parties acknowledge that only authorized representatives of the parties may enter into agreements between the parties or amendments to this Agreement.
Last Updated: Oct 23, 2020