Customer Subscription Terms
Last updated April 25, 2022
These Customer Subscription Terms and Conditions (“Agreement”) are entered into upon the date of the last signature on the applicable Order Form to which this Agreement is referenced and incorporated therein (“Effective Date”),by and between the Demostack legal entity signing an Order Form and its Affiliates (collectively, “Demostack”, “Company”, “We” or “us”) and the individual or legal entity using or licensing the Services under an applicable Order Form (“Customer”, “you” or “your” and together with Demostack, the “Parties”). For avoidance of doubt, the term “Customer” or “you” shall also include employees or other individuals using the Services.
As of the Effective Date, this Agreement governs the subscription, access to, and use of the services described in your Order Form (the “Services”). For purposes herein, “Order Form” means the subscription document that sets forth: (i) the subscription term; (ii) the Services; (iii) the fees to be paid by you; (iv) the number of Users (as defined below); and (v) any other subscription terms that may be agreed upon by the Parties.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement, in which case the terms “Customer” “you” or “your” shall refer to such entity and its Affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and shall not be permitted to use the Services. For purposes herein, “Affiliate” shall mean an entity that controls, is controlled by, or is under common control with the subject entity; “control,” for purposes of this definition, means direct or indirect ownership of control of more than 50% of the voting. Interests of the subject entity.
This Agreement is solely for paying customers and does not apply to visitors of the Site or users of the free demo.
You must be over the age that is considered to be the age of minors according to the law applicable to you to be able to use the Services. We reserve the right to request proof of age at any stage so that we can verify that minors are not using the Services. In the event that it comes to our knowledge that a person who is a minor is using the Services, we will prohibit and block such person from accessing the Services and will make all efforts to promptly delete any data with regard to such person.
1. Use of Service
1.1. Right to Use the Services. Subject to Customer’s compliance with this Agreement and applicable Order Forms and full payment of applicable Fees (as defined below), Demostack grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services for internal business purposes during the subscription term set forth in the applicable Order Form. All rights in the Services not expressly granted hereunder are reserved to Demostack (or its licensors).
1.2. Users. For the purpose of this Agreement, “User(s)” means an individual who is authorized by Customer to use the Services, for whom Customer has purchased a subscription (or for whom Services have been provisioned by Demostack), and to whom Customer (or, when applicable, Demostack at Customer’s request) has supplied a user name and password. Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
1.3. Customer Responsibilities. Customer will: (a) use the Services only in accordance with this Agreement, Order Forms, any additional Demostack user guidelines and other information related to Customer’s use of the Services made available by Demostack to Customer from time to time (“Documentation”) and applicable laws and government regulations; (b) be responsible for the accuracy, quality and legality of Customer Data, including the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services; and (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Demostack immediately of any such unauthorized access or use. Any use of the Services in breach of the foregoing by Customer or Users that in Demostack’s good faith judgment threatens the security, integrity, or availability of Demostack’s services, may result in Demostack’s immediate suspension of the Services, however Demostack will use commercially reasonable efforts to provide notice and an opportunity to remedy such violation or threat prior to any such suspension.
1.4. Use Restrictions. Other than the rights expressly specified in this Agreement and in an applicable Order Form, no other right or interest is granted to Customer in connection with the Services. Without limiting the foregoing, Customer will not: (a) make the Services available to anyone other than Customer or Users, or use the Services for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form; (b) use the Services to store or transmit infringing, libelous or otherwise unlawful or tortious material, or use the Services to store or transmit material in violation of third-party privacy rights; (c) 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 access the Services to build a competitive product or service, including any product or service using similar ideas, features, functions or graphics of the Services; (d) modify, copy, translate, or create derivative works based on the Services (except to the extent expressly authorized by Demostack); (e) sell, resell, license, sublicense, distribute, rent or lease the Services, or include the Services in a timeshare or service bureau offering; (f) remove any proprietary notices or labels; (g) use the Services to send unsolicited bulk commercial email of any kind, regardless of the content or nature of such messages; (h) interfere or attempt to interfere with the integrity or proper working of the Services; or (i) use the Services in any manner not expressly authorized by this Agreement or applicable Order Forms.
1.5. Government Use. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2. Demostack Responsibilities
2.1. Services. Demostack will: (a) make the Services available to Customer under the terms of this Agreement, applicable Order Form(s) and the Documentation; (b) use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for (i) planned downtime of which Demostack provides advance electronic notice to Customer, and (ii) any unavailability caused by circumstances beyond Demostack’s reasonable control; and (c) comply with laws and government regulations applicable to Demostack’s provision of the Services to its customers, subject to Customer’s and Users’ use of the Services in accordance with this Agreement, applicable Order Form(s) and the Documentation.
2.2. Security and Privacy of Customer Data. During the term of this Agreement, Demostack will implement and maintain appropriate administrative, physical, and technical security measures designed to protect the security, confidentiality, and integrity of, and prevent the unauthorized disclosure of, Customer Data. To the extent that Customer provides Demostack with Personal Data, the Parties may execute a separate Data Processing Agreement (“DPA”) governing such processing, which will be incorporated by reference into this Agreement upon such execution.
2.3. Support. Demostack will strive to respond to Customer support requests submitted by Customer to email@example.com within one business day and will prioritize needed fixes based upon the severity and criticality of the issues.
3. Services Fees and Payments
3.1. Services Fees. In consideration for the right to access and use the Services as set forth herein, Customer will pay to Demostack all fees set forth in Order Forms (the “Fees”). Except as otherwise set forth in this Agreement or an Order Form, payment obligations are non-cancelable, and Fees paid are non-refundable. Except as otherwise set forth in an Order Form, Fees are subject to change upon renewal.
3.2. Invoices and Payments. Except where Customer is paying via credit card, or as otherwise stated in an Order Form, Demostack will invoice Customer for all Fees annually in advance. Unless otherwise stated in an Order Form, full payment for invoiced Fees is due within thirty (30) days after the invoice date.
3.3. Late Payments. Overdue Fees may accrue a late payment charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection. In addition, if any Fees are 15 days or more overdue, Demostack may, without limiting its other rights and remedies, immediately suspend Services until such amounts are paid in full. Customer is solely responsible for all taxes associated with its purchase of Services. For clarity, Demostack is solely responsible for taxes assessable against it based on its income, property, and employees.
3.4. Payment Disputes. Demostack will not exercise its rights under the “Late Payments” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4. Proprietary Rights and Licenses
4.1. The Services. Demostack, its Affiliates and licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2. Customer Data. Customer grants to Demostack, its Affiliates and applicable contractors a non-exclusive, worldwide, royalty-free license to host, copy, use, display and transmit any and all data, information and material input or uploaded to the Services or transmitted to Demostack through the Services by or on behalf of Customer (“Customer Data”) as appropriate for Demostack to provide and ensure proper operation of the Services during the Term. Subject to the limited licenses granted herein, Demostack acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data. Customer and its licensors reserve all of their right, title and interest in and to the Customer Data, including all of their related intellectual property rights.
4.3. Feedback. Customer hereby grants Demostack a perpetual, irrevocable, royalty-free, and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Services or other Demostack products or services, including for the purpose of improving and enhancing the Services, provided that Customer is not referenced in such use.
4.4. Usage Information. Notwithstanding anything to the contrary, Demostack may collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Demostack will be free (during and after the term hereof) to: (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Demostack offerings; and (b) disclose such information and data solely in aggregated or other anonymized form in connection with its business.
5.1. Definition of Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any non-public information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), either directly or indirectly in writing, orally, or by inspection of tangible objects: (a) that the disclosing party identifies as confidential or proprietary at the time of disclosure; or (b) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information of Customer includes Customer Data; Confidential Information of Demostack includes the Services and Documentation, and the terms and conditions of this Agreement and all Order Forms (including pricing). Notwithstanding the foregoing, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes (through no breach by the Receiving Party of this Agreement or any other obligation of confidentiality applicable to the Receiving Party) generally available to the public; or (ii) was lawfully in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party who is not bound by any confidentiality obligations with respect thereto; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. For clarity, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Demostack services and offerings.
5.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Demostack may disclose the terms of this Agreement and any applicable Order Form to a contractor to the extent necessary to perform Demostack’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6. Representations, Warranties and Disclaimers
6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2. Demostack Warranties. Demostack warrants that during the applicable subscription term Demostack will not: (a) materially decrease the overall functionality of the Services; or (b) materially decrease the overall security of the Services. For any breach of a warranty above, Customer’s exclusive remedies are as set forth in the “Termination” and “Effect of Termination” sections below.
6.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE(S) AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. IN PARTICULAR, DEMOSTACK DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, CONTAMINANT-FREE OR ERROR-FREE, THAT SYSTEM AVAILABILITY BE MAINTAINED, THAT ANY ERROR, BUG OR PROBLEM BE RESOLVED OR THAT THEY WILL MEET THE CUSTOMER’S REQUIREMENTS.
THIS SECTION DOES NOT LIMIT, AND IS WITHOUT PREJUDICE TO, THE PROVISIONS OF SECTION 8 BELOW.
7. Mutual Indemnification
7.1. Indemnification by Demostack. Demostack will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Demostack in writing of, a Claim Against Customer, provided Customer: (a) promptly gives Demostack written notice of the Claim Against Customer; (b) gives Demostack sole control of the defense and settlement of the Claim Against Customer; and (c) gives Demostack all reasonable assistance, at Demostack’s expense. If Demostack receives information about an infringement or misappropriation claim related to the Services, Demostack may in its discretion and at no cost to Customer: (i) modify the Services so that they are no longer claimed to infringe or misappropriate; (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement; or (iii) terminate Customer’s subscriptions for the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated Services. The above defense and indemnification obligations do not apply if a Claim Against Customer arises from: (I) the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Demostack, if the Services or use thereof would not infringe without such combination; (II) modifications to the Services not made by Demostack; or (III) Customer’s breach of this Agreement, applicable Order Forms or the Documentation.
7.2. Indemnification by Customer. Customer will defend Demostack and its Affiliates against any claim, demand, suit or proceeding made or brought against Demostack by a third party arising from: (a) Customer’s use of the Services in an unlawful manner or in violation of this Agreement, an Order Form or the Documentation; or (b) any Customer Data or Customer’s use of Customer Data with the Services (each a “Claim Against Demostack”), and will indemnify Demostack from any damages, attorney fees and costs finally awarded against Demostack as a result of, or for any amounts paid by Demostack under a settlement approved by Customer in writing of, a Claim Against Demostack, provided Demostack: (i) promptly gives Customer written notice of the Claim Against Demostack; (ii) gives Customer sole control of the defense and settlement of the Claim Against Demostack; and (iii) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Demostack arises from Demostack’s breach of this Agreement, applicable Order Forms or the Documentation.
7.3. Sole and Exclusive Remedy. This Section 7 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described herein.
8. Limitations of Liability
8.1. Limitation on Indirect Liability. EXCEPT TO THE EXTENT PROHIBITED BY LAW, NEITHER PARTY OR ITS AFFILIATES WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, COVER, BUSINESS INTERRUPTION, LOST PROFIT, OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
8.2. TO THE FULLEST EXTENT PERMITTED BY LAW AND OTHER THAN IN THE EVENT OF WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR BREACH OF EITHER PARTY’S INDEMNIFICATION OBLIGATIONS (IN SECTIONS 7.1 AND 7.2, RESPECTIVELY), THE AGGREGATE TOTAL LIABILITY OF EITHER PARTY TOGETHER WITH ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY (“LIABILITY CAP”).
THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “SERVICES FEES AND PAYMENTS” SECTION ABOVE.
9. Term and Termination
9.1. Term. This Agreement commences on the Effective Date and will remain in effect for so long as Customer has an applicable Order Form in effect, unless otherwise terminated in accordance with the provisions herein (including but not limited to any provisions specified under the Order Form).
9.2. Renewal. Except as otherwise stated in the applicable Order Form and subject to applicable law, Order Forms will automatically renew for additional twelve (12) month periods (“Renewal Term(s)”), unless either party gives the other party notice of its intent not to renew at least sixty (60) days before the end of the relevant Order Form term. A new Order Form shall only be executed upon renewal in the event of any changes to the subscription terms.
9.3. Termination. Either party may terminate this Agreement and any Order Form thereunder for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the end of such period; or (b) upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
9.4. Effect of Termination. Except as otherwise stated herein, in the event of any expiration or termination of this Agreement, all rights granted hereunder shall immediately expire and any and all use of the Services shall immediately cease and expire. If Customer terminates this Agreement pursuant to Section 9.3 above, Demostack will refund Customer any prepaid Fees covering the remainder of the subscription term of all Order Forms after the effective date of termination. Notwithstanding the foregoing, in no event will termination of this Agreement relieve Customer of its obligation to pay any Fees applicable to the period prior to the effective date of termination.
9.5. Survival. The following sections will survive any expiration or termination of this Agreement: Section 2.2 (Security and Privacy of Customer Data), for as long as Demostack retains any Customer Data, Section 3 ( Services Fees and Payments), Section 4 (Proprietary Rights and Licenses), Section 5 (Confidentiality), Section 6.3 (Disclaimers), Section 7 (Mutual Indemnification), Section 8 (Limitation of Liability), Section 9.4 (Effect of Termination),” this Section 9.5 (Survival) and Section 10 (Miscellaneous).
10.1. Entire Agreement, Order of Precedence. This Agreement is the complete and exclusive statement of the mutual understanding of the parties regarding Customer’s use of Services and supersedes previous and contemporaneous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. The parties agree that any term or condition stated in any Customer purchase order or other document, except for Order Forms, is void. In the event of a conflict or inconsistency between any Order Form and this Agreement, the Order Form shall control. Titles and headings in this Agreement are for convenience only and will not affect the construction of any provision of this Agreement.
10.2. Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Demostack and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use the Services in Russia or a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea) or in violation of any U.S. export law or regulation.
10.3. Relationship of the Parties, Third-Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, join venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation to its employees, as well as all employment-related taxes. There are no third-party beneficiaries under this Agreement.
10.4. Waiver, Severability. No failure or delay in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.5. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employee or agent of the other party in connection with this Agreement.
10.6. Assignment. This Agreement is not assignable, transferable, or sub-licensable by Customer except with Demostack’s prior written consent. An Affiliate of the Customer may also acquire Services from Demostack by entering into an Order Form with Demostack and, for the purposes of any such Order Form, the Affiliate executing the Order Form will be considered the “Customer” as that term is used herein and therein, and such Order Form will constitute a contract for the applicable Services between Demostack and the applicable Affiliate executing the Order Form. The Customer shall remain fully liable for the actions and omissions of its Affiliates. Demostack may transfer and assign any of its rights and obligations under this Agreement without consent.
10.7. Change in Terms. Demostack reserves the right to modify or otherwise update this Agreement at any time. Such updated version shall only apply to you upon renewal of your subscriptions to the Services, and the most recent version of the Agreement shall always be available here www.demostack.com/customersubscription.
10.8. Notices. 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.
10.9. Governing Law and Jurisdiction. This Agreement and any dispute or lawsuit arising out of or in connection with this Agreement, including its exhibits and the Order Forms, and the courts that have jurisdiction over any such dispute or lawsuit shall be the State of California, USA, without regard to its conflict of laws provisions.
10.10. Public Reference. Demostack may make public statements, references, or announcements with respect to this Agreement and/or the use of the Services by the Customer and in such context Demostack may use Customer's name, trademarks, and logos. At the request of Demostack, the Customer shall reasonably cooperate with Demostack in the preparation of a case study document on how the Services are being used by the Customer and how the Customer benefits from such use.