CustomShow, Inc. Terms of Service

THESE TERMS OF SERVICE (THE “AGREEMENT”) GOVERN YOUR EVALUATION OF THE SERVICES, AND, IF YOU PURCHASE SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING, ELECTRONICALLY ACCEPTING OR PAYING AN INVOICE THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Agreement was last updated on February 3, 2017. It is effective between You and CustomShow as of the date You accept this Agreement, or upon an update of this Agreement by CustomShow in accordance with the terms set forth herein (the “Effective Date”).

1. Definitions

In addition to terms defined elsewhere in this Agreement, whenever used in this Agreement with the initial letter capitalized, the following terms will have the following specified meanings:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

“Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests a party.

“CustomShow” means CustomShow, Inc., a Delaware corporation having a place of business at 216 East 45th Street, 17th Floor, New York, NY 10017.

“CustomShow Analytics” means the aggregated and anonymized results, data, and related reports generated by and based upon Your use of the Purchased Services and Your Data that may be available to You within the scope of the Purchased Services.

“Confidential Information” has the meaning ascribed to it in Section 6.1.

“Contract Term” means the subscription period for the Purchased Services as specified in an Invoice.

“Documentation” means CustomShow’s user manuals, help files or other documentation describing the operation of the Purchased Services, accessible via the CustomShow Help website at https://help.customshow.com (or successor location), as may be updated by CustomShow from time to time.

“Evaluation Term” means the evaluation period, if any, for Your evaluation of the Purchased Services.

“Feedback” means any suggestions or comments regarding the Purchased Services that You provide to CustomShow.

“Fees” means the amounts payable by You to CustomShow for User subscriptions based on the agreed-upon charges as stated in the applicable Invoice.

“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

“Laws” means all applicable laws, regulations, statutes, rules, orders and other requirements of any applicable international, federal, state or local governmental authority.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, or the like.

“Invoice” means the ordering documents for Your evaluation or purchase of subscriptions to the Purchased Services hereunder, including addenda thereto, that are signed or electronically delivered by You and accepted by CustomShow from time to time. Invoices shall be deemed incorporated herein by reference.

“Purchased Services” means the base set of CustomShow presentation products and features associated with the Subscriptions You have purchased through the execution of an Invoice, including the online platform provided via the website http://app.customshow.com, and other designated applications that can be accessed via CustomShow’s mobile and desktop applications.

“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.

“Users” means individuals authorized and identified by You for whom You have purchased subscriptions to the Purchased Services or who have been granted access to the Purchased Services for evaluation purposes. “Subscribers” means the number of Users identified in the Invoice for whom You agree to pay subscription Fees during the Contract Term. You are responsible for payment of Fees for all Subscribers for the duration of the Contract Term. “Additional Users” means Users added by You during the Contract Term in excess of the number of Subscribers. You are responsible for payment of Fees for all Additional Users for the duration of their use of the Purchased Services. Where “Users” alone is used herein, it shall refer to both Subscribers and Additional Users.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and any of Your Users and/or Affiliates.

“Your Analytics” means, except for CustomShow Analytics, the results, data, and related reports generated and based upon Your use of the Purchased Services and Your Data.

“Your Data” means all electronic data or information submitted or uploaded by You or Your Users in connection with the Purchased Services, including any data or information supplied by You to CustomShow via Your third-party business applications or services.

“Maintenance and Support” shall mean, without limitation, unlimited phone calls and email support between the hours of 8:00am – 8:00pm Eastern Time, as well as the provision of new versions, updates, releases, error corrections, bug fixes, enhancements, or modifications to one or more of the existing function(s) of the Purchased Services as described in Exhibit B “Maintenance and Support”.

“Error” means a failure of the Purchased Services to conform to the specifications set forth in the Documentation, resulting in the inability to use, or material restriction in the use of the Purchased Services.

2. Subscriptions, Users and Invoices

2.1 CustomShow shall make the Purchased Services available to You pursuant to this Agreement and the relevant Invoices. You agree that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by CustomShow regarding future functionality or features.

2.2 Evaluation Term Subscriptions. During the Evaluation Term, subject to the terms and conditions of this Agreement, any applicable Invoice and Your payment of applicable Fees, CustomShow hereby grants to You a nonexclusive, non-transferable, non-sublicensable, revocable and limited license to: (a) access and use the Purchased Services solely for Your evaluation purposes; and (b) use, access and reproduce the Documentation and Analytics for internal business purposes. Any data that You or Your Users upload or enter into the Purchased Services and any Analytics generated by You during the Evaluation Term will be permanently lost and/or erased at the end of the Evaluation Term or within thirty (30) days thereafter, unless You elect to purchase the Purchased Services before the expiration of the Evaluation Term. IF THE PURCHASED SERVICES ARE NOT PURCHASED BY YOU PRIOR TO SUCH EXPIRATION, CUSTOMSHOW WILL HAVE NO LIABILITY OF ANY KIND TO YOU OR ANY THIRD PARTY FOR ANY OF YOUR DATA OR ANALYTICS ERASED OR DELETED BY CUSTOMSHOW AFTER SUCH THIRTY (30) DAY PERIOD.

2.3 Contract Term Subscriptions. During the Contract Term, subject to the terms and conditions of this Agreement, the applicable Invoice and Your payment of Fees, CustomShow hereby grants to You a nonexclusive, non-transferable, non-sublicensable, revocable and limited license to: (a) access and use the Purchased Services; and (b) use, access and reproduce the Documentation and Analytics for internal business purposes.

2.4 Users. Unless otherwise specified in the applicable Invoice, Purchased Services are purchased as User Subscriptions and may be accessed by no more than the specified number of Subscribers in an Invoice (or such other document as CustomShow may accept in lieu of an Invoice), provided that Additional User Subscriptions may be added by You via the Purchased Services, pursuant to the terms of, and at the Fees specified for Users in the Invoice, prorated for the remainder of the Contract Term. User Subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned by You via the Purchased Services to new Users replacing former Users who no longer require ongoing use of the Purchased Services.

3. Additional Obligations

3.1 CustomShow Obligations. During the Contract Term, CustomShow will: (a) provide to You Maintenance and Support for the Purchased Services per CustomShow’s Service Level Agreement; and (b) use commercially reasonable efforts to ensure the Purchased Services are available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime for the Purchased Services (of which CustomShow will use commercially reasonable efforts to give at least eight (8) hours notice via the Purchased Services and email); or (ii) any unavailability of the Purchased Services caused by circumstances beyond CustomShow’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving CustomShow’s employees), internet-service-provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services subject to applicable laws and government regulations.

3.2 Your Obligations. You will: (a) be responsible for all Users’ compliance with this Agreement; (b) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Purchased Services, and notify CustomShow promptly of any such unauthorized access or use; (d) be responsible for any third party products or services used or exchanged by You in connection with the Purchased Services; (e) be responsible for ensuring that all Your computer systems, technology or other similar items used in connection with the Purchased Services do not interfere with or disrupt the integrity or performance of the Purchased Services; and (f) use the Purchased Services only in accordance with the Documentation and all applicable Laws. You understand and acknowledge that: (i) CustomShow has no obligation to review Your content or Your Data; (ii) all email recipient addresses supplied for use in connection with the Purchased Services are supplied solely by You and CustomShow has no obligation to “scrub” any message recipient list; and (iii) You are solely responsible for the creation, initiation and sending of messages via the Purchased Services, including, but not limited to, the content, recipients, and timing of such messages. You will not: (1) make the Purchased Services available to any third party other than designated Users; (2) sell, resell, rent, lease, modify, translate or create derivative works of the Purchased Services; (3) decompile, reverse engineer or reverse assemble any portion of the Purchased Services, or attempt to discover any source code or underlying ideas or algorithms of the Purchased Services; (4) access the Purchased Services in order to build a competitive product or service, or copy any features, functions or graphics of the Purchased Services; (5) use the Purchased Services to store or transmit material in violation of third party privacy rights; (6) transmit unsolicited commercial or non-commercial email via the Purchased Services; (7) use the Purchased Services to store or transmit Malicious Code; (8) interfere with or disrupt the integrity or performance of the Purchased Services or third party data contained therein; (9) attempt to gain unauthorized access to the Purchased Services or their related systems or networks; or (10) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Purchased Services or Documentation. The Documentation may include additional restrictions or limitations to the use of the Purchased Services, and You agree to comply with any such restrictions or limitations. CustomShow reserves the right, without limiting any other right or remedy available at law, in equity, or under this Agreement, to immediately suspend Your access to and use of the Purchased Services if CustomShow determines, in its reasonable discretion, that You are violating (or have violated) any of the provisions set forth in this Section 3.2 (each a “Restriction Violation”). CustomShow shall provide notice of such suspension to You (via the Purchased Services or otherwise) and, where practicable, the parties shall thereafter work together in good faith to resolve such Restriction Violation. In the event the Restriction Violation cannot be cured within a reasonable period of time after CustomShow’s notification, CustomShow reserves the right to immediately terminate this Agreement and any Subscriptions then in effect.

3.3 Under no circumstances shall CustomShow, by virtue of this Agreement or otherwise, be obligated to provide to You the source code or other information or training that would enable You to modify, develop, customize or change the Purchased Services.

3.4 You are prohibited from making any modifications or conversions of, on or for the Purchased Services, or causing any third party to make any such modifications or conversions of, on or for the Purchased Services, and CustomShow is released and relieved of all liability for the performance, or lack thereof, of the Purchased Services resulting from any such modification or conversion made by or at Your direction. In the event that CustomShow elects to provide a remedy for the effects of such modifications and/or conversions, You shall pay CustomShow for such work at CustomShow’s standard rates for such services.

4. Fees and Payment

4.1 Fees. During the Contract Term (or Evaluation Term where applicable), You will be charged Fees for Users. Except as otherwise specified herein or in an Invoice: (a) Fees are quoted and payable in United States dollars; and (b) Your obligation to pay all Fees is non-cancelable, and Fees paid are non-refundable. CustomShow, in its discretion, reserves the right to increase Fees for Purchased Services at any time, provided that (a) CustomShow will not increase the Fees during the Contract Term stated in an Invoice; and (b) CustomShow will not increase Fees for any renewal Contract Term by more than 5% with written notice of such increase in the Fees prior to renewal, unless the Fees in such prior period were designated in the applicable Invoice as promotional or ‘one-time.’ You acknowledge that CustomShow may, from time to time, add additional features or functionality to the Purchased Services that CustomShow does not make generally available without payment of additional Fees, and that Your access to and use of such additional features and functionality may require payment by You of additional Fees.

4.2 Payment Terms. You will pay Fees via check or by other payment type specified in the applicable Invoice. If You are making payments of Fees via credit card, You agree to provide accurate payment information, and hereby authorize CustomShow to charge such credit card for all Fees set forth in an applicable Invoice for the Contract Term (and any renewal thereof). For payment of Fees by any method other than credit card (for example, check, wire transfer or ACH), beginning on the start date set forth in an Invoice, CustomShow shall invoice You for Fees in accordance with the payment frequency stated in the applicable Invoice. You shall pay Fees in accordance with the Invoice. Unless otherwise stated in the applicable Invoice, all payments for which invoices are delivered are due within thirty (30) days of the date of the invoice. If CustomShow has not received payment of Fees by the applicable due date on an invoice, then CustomShow may assess a late fee of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid and/or condition future Contract Term renewals and Invoices on payment terms shorter than those specified herein. If You have elected to pay Fees via credit card and the credit card is charged back to CustomShow or if any Fees invoiced to You are not paid within thirty (30) days of the invoice date, CustomShow may: (i) with respect to chargebacks, cease charging Your credit card and invoice You for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend Your access to the Purchased Services until payment is made; and/or (iv) immediately terminate the applicable Invoice for which Fees were due and/or terminate this Agreement.

4.3 Taxes. You are responsible for paying all applicable Taxes, and will pay, indemnify and hold CustomShow harmless from any Taxes and any costs associated with the collection or withholding thereof, including penalties and interest. Unless otherwise stated in an Invoice, the Fees listed on an Invoice are not inclusive of any applicable Taxes other than Sales Taxes. If CustomShow has the legal obligation to pay or collect Taxes for which You are responsible under this Section 4.4, the appropriate amount shall be invoiced to and paid by You unless You provide CustomShow with a valid Tax exemption certificate authorized by the appropriate taxing authority.

5. Proprietary Rights

5.1 Ownership. As between the parties and subject to the license grants under this Agreement, (a) CustomShow owns all right, title and interest in and to the Purchased Services, the Documentation, the CustomShow Analytics and any and all Intellectual Property Rights embodied therein; and (b) You own all right, title and interest in and to all Your Data, Your Analytics, and any and all Intellectual Property Rights embodied therein. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by CustomShow to You under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

5.2 Ownership of Your Output. All design production and all other output or content generated by You using the Purchased Services and/or the CustomShow Analytics (“Your Output”) shall constitute a work made for hire for You, and You will be considered author and owner of Your Ouput for all purposes. Regardless of whether Your Output is deemed a work made for hire, CustomShow assigns all right, title and interest in Your Output, including all copyrights and other intellectual property rights in those slides, presentations and other output, to You in all languages and in all media and forms of expression now known or later developed. CustomShow will execute all documents and will take all commercially reasonable actions necessary to complete, confirm and perfect in Your ownership of Your Output. CustomShow acknowledges and agrees that it shall have no rights in Your Output and will not use or provide it to any other party except as set forth in Section 11.

5.3 Feedback. Notwithstanding any terms to the contrary in this Agreement, in the event You provides CustomShow with Feedback, You hereby grant to CustomShow an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, distribute, create derivative works of, publicly perform, and publicly display such Feedback in any medium or format, whether now known or later developed; provided that such Feedback is anonymous and does not include any of Your Confidential Information.

6. Confidentiality

6.1 Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the terms of this Agreement as well as components of the business plans, inventions, product plans, design plans, financial plans, computer programs, know-how, customer information, strategies, marketing plans, technology and technical information, business processes and other similar information. Without limiting the foregoing, CustomShow’s Confidential Information includes the Purchased Services, the Documentation, and the CustomShow Analytics. Your Confidential Information includes Your Data and Your Analytics. Confidential Information does not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

6.2 Compelled Disclosure. Notwithstanding Section 6.1, the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled to do so by Law or in connection with other legal proceedings involving the Disclosing Party, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) so as to permit the Disclosing Party a reasonable opportunity to prevent such 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 such Confidential Information. In the event CustomShow is obligated to respond to a third party subpoena or other compulsory legal order or process with respect to any of Your Data, You will promptly reimburse CustomShow for all reasonable attorneys’ fees, as well as employees’ time and materials, at CustomShow’s then-current hourly rates, incurred in connection with such response.

6.3 Security of Your Data. CustomShow shall use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. CustomShow shall not: (a) modify or access Your Data except as necessary to provide the Purchased Services, prevent or resolve service or technical problems, or at Your request in connection with customer-support matters; or (b) disclose Your Data except as compelled by Law or other legal proceedings in accordance with Section 6.2, or as expressly permitted in writing by You.

6.4 Privacy. You acknowledge that information that You submit to CustomShow in connection with the Purchased Services will be handled in accordance with CustomShow’s Privacy Policy (located at https://www.customshow.com/privacy or successor URL).

6.5 Statistical Information. Notwithstanding anything to the contrary in this Agreement or elsewhere, CustomShow may monitor and analyze Your use of the Purchased Services and Your Data, and compile statistical and performance information related to the provision and operation of the Purchased Services. CustomShow may make such statistical and performance information publicly available in an anonymized and aggregated manner, provided that such information does not incorporate identifiable Your Data and/or Your Confidential Information. CustomShow retains all Intellectual Property Rights in such statistical and performance information.

6.6 Security of Passwords. You are solely responsible for all activities that occur in Your or Your Users’ account(s) and for the security of all of Your and Your Users’ passwords. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMSHOW HAS NO LIABILITY OF ANY KIND (WHETHER BY CONTRACT, TORT OR OTHERWISE) FOR ANY UNAUTHORIZED ACCESS TO YOUR OR YOUR USERS’ ACCOUNTS AS A RESULT OF YOUR OR YOUR USERS’ ACTIONS OR INACTIONS.\r\n

7. Representations and Warranties

7.1 CustomShow Warranties. CustomShow represents and warrants that: (a) the Purchased Services does not infringe any United States copyright or known published patent, violate trade secrets of a third party or otherwise conflict with any rights of any other person or party under applicable laws of the United States, (b) it has the legal power to enter into this Agreement, and doing so will not violate any other agreement to which CustomShow is a party; (c) the Purchased Services will perform substantially in accordance with the Documentation, that Maintenance and Support services provided by CustomShow shall be substantially as described in the Service Level Agreement and applicable written materials provided by CustomShow, and that CustomShow will make commercially reasonable efforts to solve any issues for the duration of any active Contract Term; and (d) the functionality of the Purchased Services will not be materially decreased during a Contract Term. Your sole and exclusive remedy for any breach of the foregoing is to terminate the applicable this Agreement, provided that You first provide CustomShow with timely written notice of, and a reasonable opportunity to cure, such breach, prior to any such termination.

7.2 Disaster Recovery. CustomShow warrants that it has disaster recovery arrangements in place to substantially mitigate any disaster affecting CustomShow’s primary location from providing the Purchased Services as set forth in this Agreement.

7.3 Your Warranties. You warrant that: (a) You have the legal power to enter into this Agreement, and doing so will not violate any other agreement to which You are a party; (b) You will not transmit any Malicious Code in connection with the Purchased Services; (c) You have the right and authority and have obtained all necessary consents required to use Your Data in connection with the Purchased Services; (d) Your Data and other data and content used by You in connection with the Purchased Services shall not infringe the Intellectual Property Rights or any other right of any third party; and (e) You will comply with all applicable Laws in Your performance of this Agreement, including, without limitation, Laws relating to: (i) individual privacy or the distribution of email and other one-to-one digital messages (including, without limitation, the CAN-SPAM Act of 2003 and any rules adopted under such act); (ii) the recording of communications, including, where required, advising all participants in a recorded meeting or event via the Purchased Services that the meeting or event is being recorded; and (iii) the use of voice-over IP telephony services.

7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, CUSTOMSHOW MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND CUSTOMSHOW SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, CUSTOMSHOW DOES NOT MAKE ANY WARRANTIES THAT THE SERVICES ARE FREE FROM ANY BUGS, ERRORS OR OMISSIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING AN EVALUATION TERM, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND CUSTOMSHOW WILL NOT BE RESPONSIBLE FOR ANY LOSS OF YOUR DATA (OR ANY DATA RELATED THERETO). THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Indemnity

8.1 Your Indemnity Claims.You will, at your own expense, defend, indemnify and hold CustomShow and its directors, officers, employees, suppliers, consultants, contractors and agents harmless from and against any and all actual or threatened claims, suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) (collectively, “Claims”) arising out of or relating to: (a) Your breach of this Agreement or any representation or warranty made by You herein; (b) Your negligence or willful misconduct; (c) Your Data (including, without limitation, Claims alleging that Your Data violates or misappropriates the Intellectual Property Rights or other rights of any third party); and/or (d) any violation of any Law by You.

8.2 Procedure. With respect to Your indemnity obligations arising pursuant to Section 8.1, CustomShow shall promptly notify You when it becomes aware of any Claim, provided that any delay in providing such notice shall not relieve You of Your indemnity obligations under this Agreement unless, and only to the extent, You were prejudiced by the delay. CustomShow shall reasonably cooperate with You in the defense of such Claim at CustomShow’s expense. CustomShow may participate in the defense at its option and expense; provided that You shall have the right to control the defense and all negotiations relative to the settlement of any such Claim, including without limitation selection of counsel, and provided further that no settlement imposing any affirmative or negative obligations on the part of CustomShow, including any settlement that includes (a) admission of liability or wrongdoing by CustomShow; (b) payment of any amounts not covered by Your indemnity obligations; (c) actions that affect CustomShow’s Intellectual Property Rights, may be made without the express written consent of CustomShow, which may be withheld in the sole discretion of CustomShow; and provided further provided that in conducting such defense or settling such claim or action, You shall not disclose or use in an improper or manner not authorized under this Agreement the Confidential Information of CustomShow without CustomShow’s prior written consent.

9. Limitations of Liability

9.1 Exclusion of Consequential and Related Damages. IN NO EVENT WILL CUSTOMSHOW BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF YOUR DATA (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF CUSTOMSHOW HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU AGREE THAT THE CONSIDERATION WHICH CUSTOMSHOW IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY CUSTOMSHOW OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES.

9.2 Limitation of Liability. IN NO EVENT WILL CUSTOMSHOW’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID BY YOU TO CUSTOMSHOW DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO YOU, AND THAT, WERE CUSTOMSHOW TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.

10. Term and Termination

10.1 Term of Agreement. If You elect to use the Purchased Services for evaluation only, the term of this Agreement will commence on the Effective Date and, unless earlier terminated, will expire following the end of the Evaluation Term. If You purchase Purchased Services, the Term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue for the duration of any Contract Term set forth in an applicable Invoice. Except as otherwise specified in the applicable Invoice, all Contract Terms shall automatically renew for additional periods equal in duration to the expiring Contract Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Contract Term.

10.2 Termination. Either party may terminate this Agreement as follows: (a) for cause if the other party breaches this Agreement and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar authority; or (c) in the case of CustomShow, immediately if You do not pay the Fees when due as described in Section 4.

10.3 Transition of Your Data. For a period of sixty (60) days following termination or expiration of this Agreement, You may retrieve Your Data from the Purchased Services. Any additional post-termination assistance from CustomShow is subject to the mutual agreement of the parties, including Your acceptance of any reasonable fees and terms CustomShow specifies for such assistance. After sixty (60) days following termination or expiration of this Agreement, unless prohibited by applicable Laws, CustomShow may delete or erase any and all of Your Data; provided, however, that, unless prohibited by applicable Laws, CustomShow shall promptly delete or erase Your Data upon receipt of Your written request to delete same. Except as provided in this Section 10.3, CustomShow shall have no obligation to continue to store or permit You to retrieve any of Your Data following termination of this Agreement.

10.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Your right to use the Purchased Services shall cease, and CustomShow shall have no further obligation to make the Purchased Services available to You; (b) except as otherwise expressly stated herein, all rights and licenses granted to You under this Agreement will immediately cease; (c) except as provided in Section 10.3, CustomShow will have no obligation with respect to any of Your Data; and (d) You will pay any unpaid Fees payable for the remainder of the Contract Term under any applicable Invoice in effect prior to the termination date.

10.5 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 2.1 (Evaluation Term License, for the duration of any transition to a Contract Term), 4 (Fees and Payment), 5 (Proprietary Rights), 6.1 (Confidential Information), 6.2 (Compelled Disclosure), 6.4 (Privacy), 6.5 (Statistical Information), 7 (Representations and Warranties), 8 (Indemnity), 9 (Limitations of Liability) 10.3 (Transition of Your Data, for the duration therein), 10.5 (Survival) and 12 (Miscellaneous).

11. Publicity

11.1 Publicity. You hereby agree that CustomShow may reference You and Your use of the Purchased Services in private customer and prospect communications, and on CustomShow’s website. You also agree that CustomShow may reference You and Your use of Purchased Services in marketing and public relations materials, including a press release announcing You as a customer, inclusion of You as a customer in CustomShow’s company boilerplate, and, subject to the mutual agreement of the parties, a case study describing Your use of the Purchased Services. You hereby grant CustomShow a nonexclusive, worldwide license, during the Contract Term, to use and display Your trademarks, trade names and logos in connection with the foregoing uses.

11.2 Reservation of Rights. Subject to the licenses granted in this Section, You retain all right, title and interest in and to Your trademarks, trade names, and logos.

12. Miscellaneous

12.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Purchased Services. Without limiting the foregoing: (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) You shall not permit Users to access or use Purchased Services in violation of any U.S. export embargo, prohibition or restriction.

12.2 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be: (a) delivered by hand, deposited with an overnight courier; (b) sent by confirmed email or confirmed facsimile (except that neither email nor facsimile shall be deemed sufficient for notices of breach, termination, cancellation, non-renewal, or an indemnifiable claim); or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, to the following:

(i) In Your case, to the e-mail address, mail address and/or facsimile contact information set forth within Your CustomShow account.

(ii) In the case of CustomShow, to CustomShow, Inc., ATTN: Legal, 216 East 45th Street, 17th Floor, new York, NY, 10017, U.S.A. Email: legal@CustomShow.com. Fax: (646) 661-4126

12.3 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. The parties irrevocably consent to the jurisdiction of the state and federal courts in the County of New York, State of New York for the resolution of any disputes or conflicts arising out of or related to this Agreement.

12.4 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by You, by operation of law or otherwise, without the prior written consent of CustomShow. This Agreement may be assigned or transferred by CustomShow without consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

12.5 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party. The relationship between the parties will solely be that of independent contractors.

12.6 Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner which ensures that all transactions contemplated hereby are fulfilled.

12.7 No Waiver. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.8 DMCA and Intellectual Property Rights Policy. If You believe that material on a CustomShow hosted website or located on or sent via a CustomShow product infringes Your copyright or other Intellectual Property Right (for example, trademark rights), You may send us a written notice. CustomShow will attempt to remove or disable the allegedly infringing material. CustomShow will also attempt to notify the user who posted or uploaded the allegedly infringing material.

Your written notice shall contain the following details:

(a) Your name, mailing address, telephone number and email address;

(b) Sufficient detail about the allegedly infringing material, including the Intellectual Property Right You allege is being infringed;

(c) The URL or other specific location on our websites or product that contains the material that You claim infringes Your Intellectual Property Right;

(d) A statement by You that You have a good faith belief that the disputed use is not authorized by the Intellectual Property Right owner, its agent, or the law;

(e) A statement by You that the information contained in Your notice is accurate and that You attest under the penalty of perjury that You are the owner of the Intellectual Property Right or that You are authorized to act on the such owner’s behalf;

(f) An electronic or physical signature of the owner of the Intellectual Property Right or a person authorized to act on the owner’s behalf.

Your notice can be sent to our registered copyright agent at the following: (i) CustomShow, Inc., 216 East 45th Street, 17th Floor, New York, NY, 10017, U.S.A., Attn: Legal Department DMCA Complaint; (ii) via email to legal@CustomShow.com (include “DMCA Complaint” in the subject line); or (iii) via facsimile to (646) 661-4126 (include “DMCA Complaint” on the cover sheet). Upon receipt of proper written notice, CustomShow will expeditiously remove or disable the allegedly infringing material, regardless of the nature of the material (a post, a webpage, or presentation slide, for example). CustomShow will document those alleged infringements on which we act. CustomShow will additionally notify the user and, if requested, provide the report to the user.

12.9 Entire Agreement; Updates and Revisions; Counterparts. This Agreement, together with each Invoice, constitute the entire agreement between You and CustomShow regarding the subject matter hereof, superseding all other agreements between them, whether oral or written. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on CustomShow unless signed by a duly authorized representative of CustomShow. CustomShow may update or revise this Agreement from time to time in its sole discretion, and CustomShow recommends that You review this Agreement on a regular basis. The most current version will be posted on the website located at https://www.CustomShow.com. Your continued use of the Purchased Services after any update or revision to this Agreement constitutes Your acceptance of the Agreement updates or revisions. Invoices governed by this Agreement may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Invoice.