Last modified: January 11, 2023
These terms of service (“Agreement”) are a legal agreement between you (“you,” “Client, ” or “End User”as further defined below) and Demand IQ, Inc. a Delaware Corporation (“Demand IQ,” “we,” “our,” or “us”), that describes the terms and conditions of your access to and use of the Demand IQ website and Services (as defined below), including our subscription-based software-as-a-service platforms and applications.
This Agreement includes and incorporates additional terms and conditions based on your use and/or purchase of Services:
Client will purchase Services pursuant to an Order Form. If any terms of any Attachment or Order Form are inconsistent with this Agreement, this Agreement shall control unless the Order Form specifically references the inconsistency and states that it shall control.
These General Terms and Conditions apply to all use of the Services whether by purchasing the Services or by accessing and using the Services as an end user of Demand IQ or Client.
DEMAND IQ PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF SERVICE AND ON THE CONDITION THAT CLIENT ACCEPTS AND COMPLIES WITH THEM. BY CLICKING “ACCEPT,” PURCHASING SERVICES THROUGH ON AN ORDER FORM OR OTHER AGREEMENT, CREATING AN ACCOUNT, OR OTHERWISE REQUESTING, ACCESSING, OR USING THE SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CLIENT IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CLIENT IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CLIENT AND BIND CLIENT TO ITS TERMS. IF CLIENT DOES NOT AGREE TO THESE TERMS OF SERVICE, DEMAND IQ WILL NOT AND DOES NOT GRANT THE LICENSES AND PERMISSIONS SET FORTH HEREIN, AND YOU MUST NOT CREATE AN ACCOUNT, ACCESS, OR USE THE SERVICES.
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. The date that this Agreement was last revised is identified at the top of the page. If you have provided us with an email address, we may make commercially reasonable efforts to provide you with email notice informing you that this Agreement have changed, but such notice is for your convenience only and shall not be required for the effectiveness of the changes. Your continued use of the Services following the posting of revised Agreement means that you accept and agree to the changes. You are expected to check this page each time you access the Services so that you are aware of any changes, as they are binding on you. Any revised versions of this Agreement shall supersede all previous versions.
By reviewing, accessing, or using the Services, you indicate that you have read, understood and agree to be bound by all of the terms and conditions herein.
1.1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use some or all of the Services.
1.2. “Aggregated Data” means data and information related to your use of the Services that is used by Demand IQ in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. Aggregated Data does not include personally identifiable information.
1.3. “Client” means the party entering into an Order Form.
1.4. “Client Content” has the meaning set forth in Attachment A.
1.5. “Client Data” means, other than Aggregated Data, your information, data, Client Content, and other content, in any form or medium, that is accessed by, submitted to, posted on, or otherwise transmitted through your access to and use of the Services.
1.6. “Documentation” means any instructions, user manuals, handbooks, and guides relating to the Services provided by Demand IQ to Client either electronically or in hard copy form.
1.7. “End User(s)” means Client’s customers and prospective customers who use the Service.
1.8. “Law” means all applicable international, national, federal, state, local, or other industry or governmental authority laws, ordinances, regulations, rules, codes, orders (including executive orders), statutes, standards, treaties, common laws, judgments, awards, decrees, other requirements or rules of law.
1.9. “Order Form” means any online or hard copy form executed by Client or an invoice sent to Client by Demand IQ in response to Client’s creation of an account or request for Services.
1.10. “Services” means Demand IQ’s websites, software-as-a-service platforms, Stella customer acquisition software platform, applications (including mobile applications), products, and services, including its current and future subscription-based software-as-a-service platforms, associated computer programs and modules, updates, modifications, enhancements, or new versions thereto, any Documentation, assessments, tools, or other content made available or provided by Demand IQ, and its Customer Acquisition Solution Services (as defined in Attachment A), Promotional Services (as defined in Attachment B), agency, marketing, data analytics, integration and implementation, training, or other general and technical services.
2.1. Access. Subject to and conditioned upon Client’s compliance with the terms and conditions of this Agreement, Demand IQ hereby grants to Client a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the Services as hosted by Demand IQ, solely in accordance with the terms and conditions herein, and for the purpose of Client and Client’s customers and potential customers using the features and functionality of the Services.
2.2. Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Any uses of the Services not expressly permitted under the terms of this Agreement is expressly prohibited. You shall not: (i) make copies of the Services and related Documentation, except as authorized by this Agreement or as required by applicable Law; (ii) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time; (v) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services; or (vi) use the Services or Documentation, if any, in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law. You agree to use Documentation, if any, only in conjunction with your use of the Services. For the avoidance of doubt, Documentation and Services may not be reproduced or redistributed without the prior written consent of Demand IQ. You agree that you shall not use, and shall not permit any End User to use, the Services to build or benchmark a competitive product, software or service (e.g., an instant quote, automatic estimate or automatic calculator) or copy any features, functions or graphics of the Services or Documentation.
2.3. Reservation of Rights. The Services are the exclusive property of Demand IQ. Demand IQ reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights expressly granted by this Agreement, nothing herein grants, by implication, waiver, estoppel, or otherwise, to Client or any third party, any additional intellectual property rights or other right, title, or interest in or to the Services.
2.4. Suspension. Notwithstanding anything to the contrary in this Agreement, Demand IQ may suspend Client’s access to any portion or all of the Services: (i) if Demand IQ reasonably determines (a) that there is a threat or attack on any of the Services, (b) that your use of the Services disrupts or poses a security risk to the Services or to any other user of the Services, (c) that you are using the Services in breach of this Agreement or for fraudulent or illegal activities, (d) that the provision of the Services is prohibited by applicable Law, (e) that suspension is otherwise reasonably necessary or prudent in Demand IQ’s sole discretion; or (ii) if you fail to make payment when due as further provided herein (any such suspension described in subclauses (i) or (ii), a “Service Suspension”). Demand IQ shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client. Demand IQ may, in its sole discretion, resume providing access to the Services after the event giving rise to the Service Suspension is cured. Demand IQ will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client may incur as a result of a Service Suspension.
2.5. No Lead Sharing. Demand IQ does not share any Client Data, any End User Data, or other personal data or information that could identify Client or any End User with any third parties.
2.6. Aggregated Data. Subject to the terms and conditions provided herein, Demand IQ may monitor your use of the Services and collect and compile Aggregated Data based on your use of and interaction with the Services. As between Demand IQ and Client, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belongs to and is retained solely by Demand IQ. You agree that Demand IQ may use and make Aggregated Data available to third parties solely in compliance with applicable Law, provided that such Aggregated Data does not contain any personal data or other information that could identify Client or any particular individual.
2.7. Geographic Restrictions. You acknowledge that you may not be able to access or use all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access and use the Services from outside the United States, you are responsible for compliance with local Laws.
3.1. Use of Services. You are responsible and liable for your use of the Services. Client is responsible and liable for it use of the Services and for all acts and omissions of Client employees, agents, contractors, subcontractors, and other representatives. Without limiting the generality of the foregoing, you are responsible for any access or use of the Services through your Access Credentials.
3.2. Consent to Communications. Demand IQ or Client may call or text you or authorize others to call or text you on its behalf including but not limited to at any number you provide to Demand IQ for any purpose, including marketing Demand IQ’s or Client’s services. You may not revoke your consent to receive collection-related communications or any other non-marketing communication/notice pertaining to your account (e.g., default, service message, etc.), including via calls, messages, texts, or any other means. If your numbers are included on state or federal “do not call” lists, neither Demand IQ nor Client will call or text you for marketing purposes. You are responsible for charges for incoming text messages on your wireless phone(s). Demand IQ and Client (or persons acting on their behalf) may use automated dialing systems or artificial or recorded voices to contact you or leave messages if the call goes to voicemail.
3.3. Telecommunications and Internet Services. You acknowledge and agree that your use of the Demand IQ Services is dependent upon access to telecommunications and Internet services. You are solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Demand IQ Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Demand IQ shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
4.1. Term. This Agreement shall commence as of the earlier of (i) your first access and use of the Services, or (ii) the date of execution of an Order Form. Unless otherwise expressly set forth in an Order Form, the duration of this Agreement will continue in full force and effect until you cease to use the Services and return or destroy Documentation (the “Term”). Either party may terminate this Agreement if there are no outstanding Order Forms of Statements of Work.
4.2. Termination of Order Form. You may terminate an Order Form at any time prior to the expiration of the Initial Term if Demand IQ has breached the Agreement and has failed to cure said breach within thirty (30) days after receipt of written notice from you. If Client terminates an Order Form for any reason other than Demand IQ’s uncured material breach, then Client shall pay the unpaid balance of the monthly recurring charges that would have been due throughout the applicable Order Term, plus any unpaid one-time charges. Demand IQ may terminate an Order Form at any time prior to the expiration of the then-current Term if: (a) you default in any payment due to Demand IQ and such default continues unremedied for ten (10) days after written notice thereof; (b) you are in default with respect to any other provision of this Agreement and such failure or default continues unremedied for at least thirty (30) days after receipt of written notice. All payments made to Demand IQ are non-refundable.
4.3. Termination Effect. Upon termination, all rights granted to you under this Agreement will terminate, and you must cease all use of the Services and delete all copies of the Services and Documentation. Termination will not entitle you to any refund or affect your obligation to pay all fees that may have accrued or become due before termination.
4.4. Survival. Termination will not limit any of Demand IQ’s rights or remedies at law or in equity. Without limiting the foregoing, the following rights and obligations shall survive termination of this Agreement: (i) Client’s representations and warranties, indemnification obligations, and use restrictions; (ii) Demand IQ’s limitation of liability, disclaimer of warranties, and intellectual property rights; and (iii) any other right or obligation of the parties in this Agreement that, by its nature, should survive termination of this Agreement.
5.1. Fees. Client shall pay Demand IQ all fees and expenses in accordance with the amounts and rates set forth in the applicable Order Form. Demand IQ may increase the fees for each Service after the Initial Term for such Service upon thirty (30) days’ notice to Customer. Unpaid balances are subject to monthly interest at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month compounded monthly; or (ii) the highest rate allowed by law, until paid in full. If Demand IQ is unable to collect the fees owed by you at any time, then Demand IQ may take any steps it deems necessary to collect such fees, and you will be responsible for all costs and expenses incurred by Demand IQ in connection with such collection activity, including collection fees, court costs and attorneys’ fees.
5.2. Credit Card Authorization. You agree that Demand IQ may charge to your credit card (or other payment method selected by you and approved by Demand IQ as specified in an Order Form and payment authorization form) all amounts due and owing for the Services, including service fees, set up fees, subscription fees, or any other fee or charge associated with the Services that you purchase.
5.3. Failure to Pay. You further agree that Demand IQ may suspend or cancel your Services if you do not timely pay all amounts due and owing for the Services. In addition to any other available remedy, if Demand IQ determines that Access Credentials are being shared with third parties to gain unauthorized access to purchased Services in violation of this Agreement, then Demand IQ may charge additional fees for such unauthorized use.
5.4. Taxes. All fees and other amounts payable by Client under this Agreement is exclusive of taxes and similar assessments. Without limiting the foregoing, Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Demand IQ’s income.
6.1. Internet Access. Client understands and agrees that the operation and availability of the Services is dependent on Client’s Internet and network availability, which is inherently unpredictable and may, from time to time, interfere with or prevent your access to or use of the Services. Demand IQ does not guarantee the security of any information transmitted to or from you or any other user over the Internet, including through the use of email.
6.2. Features and Modifications. The inclusion, exclusion, and continued support for, any feature, functionality, module in, or release of, the Services is within the sole and absolute discretion of Demand IQ. Demand IQ retains the absolute right to modify, discontinue, delete, or restrict any aspect or feature of the Services without any liability or obligation to the Client.
6.3. Services Availability. Unless expressly stated in an Order Form, Demand IQ does not warrant any particular level of availability for the Services. Demand IQ will use commercially reasonable efforts to minimize downtime and interruptions to Client’s access to the Services. Client acknowledges and agrees that Demand IQ has no control over downtime or interruptions arising out of or resulting from: (i) acts or omissions by Client, or any other access to or use of Client’s Access Credentials that does not strictly comply with this Agreement; (ii) Internet connectivity; (iii) failure, interruption, outage, or other problems with any software, hardware, system, network, facility, or third party services; (iv) scheduled downtime or maintenance; or (v) disabling, suspension, or termination of the Services pursuant to the terms of this Agreement.
6.4. Support. Demand IQ shall provide contact information for inquiries and remote problem support for the Services. All such support shall be provided only to Client’s designated personnel or as mutually agreed upon by Demand IQ and Client. Client is responsible for all communications and support for its End Users. Client is responsible for the installation, repair, and use of hardware and software for the use of the Services.
6.5. Updates. Demand IQ may from time to time in its sole discretion develop and provide Services updates, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Demand IQ has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
7.1. Services. Client acknowledges that, as between Client and Demand IQ, Demand IQ owns all right, title, and interest, including all intellectual property rights, in and to the Services and Aggregated Data. Client has no right, license, or authorization with respect to any of the Services or Aggregated Data except as expressly set forth in this Agreement. All other rights are expressly reserved by Demand IQ. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to Demand IQ an assignment of any right, title, and interest (that Client may have or later obtain, by operation of law or otherwise) in or to the Aggregated Data, and any derivative works created under or in connection with this Agreement, including all intellectual property rights relating thereto. To the extent that such Client right, title, or interest cannot be assigned to Demand IQ pursuant to this Section, Client hereby grants to Demand IQ a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display the Aggregated Data or derivative works. Client shall cooperate and take such actions or provide such assurances, at no cost to Demand IQ, as may be necessary to give full effect to this Agreement.
7.2. Demand IQ Website Materials. This Services contains information proprietary to Demand IQ and its business partners and Clients (“Demand IQ Website Materials”) including but not limited to (i) the Demand IQ website’s look and feel, embodied know-how, ideas, concepts, videos, designs, images, and other content, and (ii) information and data related to Demand IQ, its business partners, and its or their Clients. You acknowledge that the Demand IQ Website Materials may be treated as confidential by Demand IQ, its business partners, and Clients and agree to take all reasonable measures to protect the confidentiality of the Demand IQ Website Materials. The website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), excluding your Client Content, are owned by the Demand IQ, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
7.3. Website Restrictions. You agree (i) not to retransmit, copy, publicly display, sell, or use the website or Demand IQ Website Materials provided for business purposes, and (ii) not to alter or remove any consent or other proprietary notice or legend on the website or any of the Demand IQ Website Materials. Except as expressly authorized hereunder, our website and Demand IQ Website Materials may not be reproduced, duplicated, copied, sold, resold, reverse-engineered, or otherwise exploited for any commercial purpose without our prior written authorization, except as follows:
7.3.1. Your computer may temporarily store copies of such materials incidental to your accessing and viewing those materials.
7.3.2. You may store files that are automatically cached by your web browser for display enhancement purposes.
7.3.3. You may print one copy of a reasonable number of pages of the website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
7.3.4. If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
7.3.5. If we provide social media features with certain content, you may take such actions as are enabled by such features.
7.3.6. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the website in breach of this Agreement, your right to use the website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the website or any content on the website is transferred to you, and all rights not expressly granted are reserved by the Demand IQ. Any use of the website not expressly permitted by this Agreement of this Agreement is a breach of this Agreement of this Agreement and may violate copyright, trademark, and other laws.
7.4. Client Data. Demand IQ acknowledges that, as between Demand IQ and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Demand IQ all such rights and permissions in or relating to Client Data as are necessary or useful to Demand IQ for its internal purposes and performance of this Agreement. Further, Client hereby grants to Demand IQ a non-exclusive, royalty-free, worldwide license to: (a) reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Demand IQ to provide the Services to Client; and (b) use information about Client’s business and experience to help Demand IQ provide the Services, including updating and maintaining Client’s data, addressing errors or service interruptions, and enhancing the types of data and services Demand IQ may provide in the future. Demand IQ may use this data to create, market, or promote new Demand IQ offerings to Client and others. Client also grants Demand IQ permission to share or publish results relating to research data and to distribute or license anonymized data to third parties provided that such data does not include any Client Confidential Information or End User information.
7.5. Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Demand IQ by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Demand IQ is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to Demand IQ on Client’s behalf, and on behalf of its employees, contractors, and agents, all right, title, and interest in and to such Feedback, and Demand IQ is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever; provided, however, that Demand IQ is not required to use any Feedback.
7.6. Demand IQ Marks. All Demand IQ trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship (“Marks”), and all associated goodwill and intellectual property rights therein, are the property of Demand IQ. Except as permitted herein, Client shall not use Demand IQ Marks without prior written consent from Demand IQ. Further, Client shall not remove, delete, alter, or obscure any Marks, specifications, warranties, or disclaimers, or any copyright, patent, or other intellectual property or proprietary rights notices from any Services, including any copy thereof.
7.7. Third-Party Content. The Services may display, include, or make available third-party content (including data, information, applications, and other products, services, or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Content”). Such Third-Party content may include third-party services that interact with our Services, including certain third-party services (e.g., Jornaya LeadIDs) that track access to and use of our Services. Clients may be able to contract with some of these third-party providers in order to obtain information about End User actions in connection with our Services. You acknowledge and agree that Demand IQ is not responsible for Third-Party Content, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Demand IQ does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Content. Third-Party Content and links thereto are provided solely as a convenience to you. You access to and use of such Third-Party Content and links is entirely at your own risk and subject to such third parties’ terms and conditions. You are solely responsible for any fees or costs associated with your use of Third-Party Content, and you agree to remit payment to such third parties pursuant to such third parties’ terms and conditions, if and as applicable.
8.2. Right to Provide Data. Client represents and warrants to Demand IQ that it has the right to provide and use all information and data entered into or accessed through the Services. You are responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of personal information and other information, content, and data under you control or in your possession. Such information and data may constitute personal information or other identifying information of individuals. CLIENT IS SOLELY RESPONSIBLE FOR OBTAINING ALL RELEVANT PERMISSIONS FROM SUCH INDIVIDUALS TO SUBMIT SUCH DATA TO THE SERVICES. DEMAND IQ WILL HAVE NO LIABILITY WHATSOEVER RESPECTING ANY CLAIM BY ANY THIRD PARTY ALLEGING THAT YOU HAVE SUBMITTED ANY OF THEIR DATA, OR THAT DEMAND IQ HAS PROCESSED YOUR DATA IN ACCORDANCE WITH THIS AGREEMENT, WITHOUT SUCH THIRD PARTY’S CONSENT, IN VIOLATION OF THEIR PRIVACY OR OTHER PROPRIETARY RIGHTS OR IN VIOLATION OF ANY APPLICABLE DATA AND PRIVACY LAWS.
8.3. Compliance with Law. It is Client’s sole obligation and responsibility for its compliance with all Laws, rules, and other requirements. Client represents, warrants, and covenants that it shall comply with all Laws, or other requirements, judgements, or determinations of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. Client shall be solely liable for its violation of any of the foregoing.
8.4. Data Loss or Damage. Demand IQ is not responsible for any loss or damage to Client’s information, data, or content. You hereby waive and release Demand IQ from any claim, loss, or damages arising out of or resulting from information, content, or data loss or damage.
9.1. During the Term and for a period of three (3) years thereafter, each party shall keep confidential, shall not use for itself or the benefit of others, and shall not copy or allow to be copied, in whole or in part, any confidential or proprietary information of a party relating to that party’s business or operations, financial, technical, and other information of a party that is provided to the other party in any form, whether or not marked or otherwise identified as confidential (“Proprietary Information”), other than as reasonably necessary to fulfill the terms of this Agreement or as permitted under applicable Laws. Client Data constitutes Client’s Proprietary Information. The technology underlying the Service, the Documentation (including any complete or partial copies thereof), the concepts, techniques, ideas, and know-how embodied in the Service constitutes Demand IQ’s Proprietary Information. Neither party shall, without the other party’s prior written consent, disclose, provide, or make available any of the Proprietary Information of the other party in any form to any person, except to its bona fide employees, officers, or directors whose access is necessary to enable such party to exercise its rights hereunder. Each party agrees to take all reasonable steps and the same protective precautions to protect the Proprietary Information of the other party from disclosure to third parties as with its own proprietary and confidential information.
9.2. The obligations of confidentiality imposed shall not apply with respect to any alleged Proprietary Information which: (a) is known to the recipient thereof prior to receipt thereof from the other party hereto; (b) is disclosed to said recipient by a third party who has the contractual right to make such disclosure; (c) is or becomes a part of the public domain or public knowledge through no fault of said recipient; (d) is independently developed by the recipient without reference to the disclosing party’s Proprietary Information; or (e) is required to be disclosed under operation of Law, as long as the party affected has the opportunity to apply to the applicable legal entity for a protective order.
9.3. Each party will use the same degree of care to protect the other’s Proprietary Information as it uses to protect its own Proprietary Information of like nature, but in no circumstances less than reasonable care. In accordance with applicable Laws, Demand IQ shall implement appropriate physical, organizational, and technological measures to ensure the security and confidentiality of Client Data in its possession from time to time. Each party will take appropriate action to address incidents of unauthorized access to the other’s Proprietary Information, including promptly notifying the other of the unauthorized access. Upon the expiration or termination of the Agreement, or on completion of a party’s obligations under the Agreement, each party shall use its commercially reasonable best efforts to return, or destroy, or cause to be returned or destroyed, in a prompt manner, all materials in any medium that contain, refer or relate to the Proprietary Information of the other party.
If you are unsatisfied with the Services or a change to the terms of this Agreement, your sole remedy is to terminate this Agreement. We may terminate this Agreement, in whole or with respect to a Service, with or without cause, at any time immediately upon our disabling your Access Credentials. We may notify you of termination of the Agreement via email. After the termination of this Agreement or a Service, you are not authorized to access or use the Service, and you shall cease all such access and use. If you nonetheless access or use the Service in spite of termination of the Agreement or Service, your use of, or access to, the Service will be subject to the version of the Agreement then in effect as to all current users.
Client shall indemnify, hold harmless, and, at Demand IQ’s option, defend, Demand IQ and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to: (i) your acts, omissions in connection with this Agreement or your breach thereof; (ii) your use or misuse of, or your failure to use, the Services, any Deliverables, or any Third-Party Content; (iii) your Client Data, Client Content, or any use thereof, in accordance with this Agreement, including any alleged or actual infringement, misappropriation, or other violation of a third party’s right, including intellectual property rights; and (iv) your violation of any applicable Law, including but not limited to any applicable privacy or data protection Laws, rules, and regulations worldwide.
THE DEMAND IQ SERVICES AND OTHER INFORMATION, DATA, AND CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND DEFECTS, WITHOUT WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DEMAND IQ, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. DEMAND IQ ASSUMES NO RESPONSIBILITY FOR YOUR RELIANCE ON THE DEMAND IQ SERVICES, OR FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE INFORMATION PROVIDED BY YOU OR ANY THIRD PARTY THROUGH THE DEMAND IQ SERVICES, OR ARISING FROM YOUR USE OF THE DEMAND IQ SERVICES. WITHOUT LIMITATION TO THE FOREGOING, DEMAND IQ PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES, OR RESULTS OF USE THEREOF, WILL MEET YOUR ANY OTHER PERSON’S REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, BROWSERS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE, RELIABILITY, OR INDUSTRY STANDARDS OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE DEMAND IQ SERVICES, AND USE OF THE DEMAND IQ SERVICES IS SOLELY AT YOUR OWN RISK. CLIENT HEREBY IRREVOCABLY WAIVES ANY AND ALL CLAIMS BASED ON OR RELATED TO THE FOREGOING.
13.1. IN NO EVENT SHALL DEMAND IQ, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR (I) ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES; (II) LOST REVENUES OR PROFITS; (III) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, REPUTATION, OR GOODWILL; (IV) LOSS OR CORRUPTION OF DATA; (V) LOSS RESULTING FROM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (VI) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (VII) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (VIII) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (IX) BREACHES IN SERVICE SECURITY; (X) ANY ERRORS OR OMISSIONS IN THE SERVICES; (XI) YOUR RELIANCE ON ANY SERVICES OR CONTENT; OR (XII) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT DEMAND IQ WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. IN NO EVENT WILL DEMAND IQ’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO DEMAND IQ PURSUANT TO THESE TERMS IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.3. THE LIMITATIONS SET FORTH IN THIS LIMITATION OF LIABILITY SECTION SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THESE TERMS FAIL THEIR ESSENTIAL PURPOSE.
13.4. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF DEMAND IQ SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
ANY CAUSE OF ACTION OR CLAIM THAT YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
15.1. Government Requirements. To the extent any Laws relating to contracting with government entities or downstream contracting with other parties contracting with government entities (“Government Contracting Requirements”) impose any requirements or require terms and conditions that contradict the provisions in this Agreement, Client shall notify Demand IQ in writing of such Government Contracting Requirements and upon acceptance and written agreement by Demand IQ, such Government Contracting Requirements shall govern and be enforceable between Client and Demand IQ as to only those provisions that contradict any such provision in this Agreement.
15.2. U.S. Government Rights. The Services are in part commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted 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 city of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
17.1. Export Regulation. The Services may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by Law. You shall comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services available outside the US.
17.3. Amendment and Modification; Waiver. No amendment to or modification of this Agreement by Client is effective unless it is in writing and signed by an authorized representative of Demand IQ. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.4. Assignment. The rights conferred by this Agreement shall not be assignable by the Client without Demand IQ’s prior written consent. If allowed, Demand IQ may impose a reasonable fee on any such assignment. Demand IQ may assign this Agreement without notice to or consent of Client. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. These Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
17.5. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and addressed to the parties, as the case may be, at Demand IQ’s address set forth herein, in an applicable Order Form or in your account, or to such other address that may be designated by the party by giving notice from time to time in accordance with this Section. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, notice is effective only: (i) upon receipt by Demand IQ (if Demand IQ is the receiving party) or delivery in accordance with this Section (if Demand IQ is not the receiving party); and (ii) if the party giving the notice has complied with the requirements of this Section.
17.6. Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person (other than the indemnified parties listed in the indemnification provisions) any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
17.7. Client Reference. Client agrees that Demand IQ may reference its business relationship with Client by listing Client’s business name, trademark and/or logo, in its marketing or sales materials, including on the Demand IQ Website.
17.8. Interpretation. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b) any reference to an “Attachment” or “Exhibit” or a “Section” refers to an Attachment, Exhibit, or a Section, as the case may be, of this Agreement; (c) all references to this Agreement and the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; (d) all Section headings are for convenience only and shall not affect the interpretation or construction of this Agreement; (e) the words “including,” “included” and “includes” mean inclusion without limitation; (f) the word “or” is not exclusive and shall have the meaning commonly ascribed to the term “and/or”; and (g) any legal or equitable principles that might require or permit the construction of this Agreement or any provision hereof against the party drafting this Agreement shall not apply in any construction or interpretation of this Agreement.
17.9. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement. Such unenforceable term or provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or disregarding it (if not). If an unenforceable term or provision is modified or disregarded in accordance with this Section, the rest of this Agreement is to remain in effect as written, and the unenforceable term or provision is to remain as written in any circumstances or jurisdictions other than those in which the provision is held to be unenforceable.
17.10. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
17.11. Force Majeure. Demand IQ shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Demand IQ including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
These Terms and Conditions apply to your purchase and use of Customer Acquisition Solution for Solar Services.
1.1. Dashboard, administrative module – The business sided interface for accessing Demand IQ software products and analytics.
1.2. End user interface – The consumer facing software used for solar customer acquisition.
1.3. Analytics – Graphical representations of raw or calculated data from Demand IQ products or services.
2.1. Integration and Implementation. Demand IQ shall provide services necessary for the proper implementation, integration and configuration of the System for purposes of the Client’s and End Users’ access to and use of the Service. Such services include, development and implementation an application interface or integration to permit Client’s End Users to connect to the Demand IQ Service from the Client’s website, establishing and testing of connectivity links between Client’s and Demand IQ’s computing environments. As between the parties, Demand IQ is the sole and exclusive owner of and retains any and all right, title, and interest in and to any interface and integration provided by Demand IQ.
2.2. Customization. Demand IQ customizes certain elements of the End User interface to reflect Client’s branding and the provision of Client Content (as defined herein) through the Demand IQ platform. Client grants to Demand IQ a limited, non-exclusive, royalty-free, non-transferable (except in the case of a permitted assignment of this Agreement by Demand IQ) license to use the use the trademarks, service marks, and logos (“Marks”) of Client that Client designates and provides to Demand IQ for the limited purpose of enabling Demand IQ to provide the Services. Demand IQ recognizes Client’s title in and to, or rights in, the Marks, and Demand IQ shall not do anything inconsistent with Client’s ownership or license of the Marks. Demand IQ agrees that all goodwill arising from its use of the Marks will inure solely to the benefit of Client, and nothing in this Agreement constitutes the grant of a general license to Demand IQ of the Marks.
2.3. Modifications. Demand IQ reserves the right, in its sole discretion, to change or modify the Service and End User interface in any manner that it deems necessary or desirable, including adding or removing features or functionality of the Service, without notice to Client.
3.1. Client Content. Client may upload or otherwise provide to Demand IQ materials, photographs, videos, designs, images, drawings, graphics, artwork, pricing, product information, or other content (“Client Content”) for use in connection with the Services to support Client’s sales and marketing efforts to End User. Client shall be solely responsible for all Client Content and the consequences of submitting and publishing the Client Content via the Services. Any Client Content that you provide to Demand IQ to be used with the Services, or that you otherwise provide for use in conjunction with the Demand IQ platform will be considered non-confidential and non-proprietary.
3.2. Responsibility for Client Content. Demand IQ is not responsible for the Client Content provided through the Services. Client may refuse to publish or delete your Client Content, but in some cases, we cannot ensure that it can or will be deleted. Copies of your Client Content may remain viewable in cached and archived pages. Do not provide any Client Content that you do not want to be accessed or used by Demand IQ and End Users. Client represents and warrants that: (a) Client owns or controls all rights in and to the Client Content and has the right to grant the license described below to Demand IQ and service providers, and each of their and our respective licensees, successors, and assigns; (b) all Client Content does and will comply with this Agreement, any acceptable use policy, and applicable Law. Client understands and agrees that Demand IQ does not control and is not responsible for any other content made available to End Users by Client or a third party. Under no circumstances will Demand IQ be liable for any Client Content, any other third-party content or materials, or any loss or damage resulting from your use of, or reliance on, such content.
3.3. Ownership of Client Content. Client retains ownership of Client Content and hereby grants to Demand IQ and its affiliates and service providers, and each of their and our respective licensees, successors, and assigns a non-exclusive, royalty-free, transferable, worldwide, right and license to use, reproduce, modify, adapt, publish, translate, transmit, distribute (through multiple tiers), create derivative works of, and publicly display your Client Content, in whole or in part, and to grant and authorize sublicenses of the foregoing, without any compensation, via the Service and related Demand IQ platforms. Client also grants End User a non-exclusive license to access your Client Content via the Service and related Demand IQ platforms, and to use, reproduce, create derivative works of, adapt, publish, transmit, distribute and publicly display such Client Content subject to this Agreement.
3.4. Client Content Restrictions. Client shall not submit, upload, or otherwise make available via the Service any Client Content or materials that (i) are fraudulent, unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, obscene, vulgar, profane, injurious to third parties, or are otherwise objectionable as determined by Demand IQ; (ii) infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person; (iii) violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable Law or that otherwise may be in conflict with this Agreement; (iv) Client does not have the rights necessary to use, transmit, publish, or to grant Demand IQ the license as described herein; (v) content or data that would falsely represent Client’s identity or qualifications; (vi) except as otherwise permitted by Demand IQ in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding; or (vii) any virus, trojan horse, worm or other disruptive or harmful software or data. Demand IQ shall have the right (but not the obligation) to reject, remove or delete any Client Content and other materials for any or no reason. Demand IQ will cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Service. YOU EXPRESSLY WAIVE AND HOLD HARMLESS Demand IQ AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS, DAMAGES, OR LIABILITIES RESULTING FROM ANY ACTION TAKEN BY Demand IQ DURING, OR AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER Demand IQ OR LAW ENFORCEMENT AUTHORITIES.
Demand IQ does not knowingly violate or permit others to violate the copyrights of others. Demand IQ will promptly remove or disable access to material that it knows, or becomes aware, is infringing.
4.1. DMCA. The Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under United States copyright law. If you believe that your work, or the work of a third party for whom you are authorized to act, is featured on this website or has been otherwise copied and made available on this website in a manner that constitutes copyright infringement, please notify us immediately.
4.2. DMCA Notice. In accordance with the DMCA, your notice must be in writing and must include:
4.2.1. an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest;
4.2.2. identification and a description of the copyrighted work that you claim has been infringed or, if the claim involves multiple works on the website, a representative list of such works;
4.2.3. a sufficiently precise description of where the material that you claim is infringing is located on this website (including the URL, title and/or item number if applicable, or other identifying characteristics) so that we are able to locate it;
4.2.4. your contact information, including your name, address, telephone number, and email address, and, if you are not the owner of the copyright, the name of the owner;
4.2.5. a written statement by you that you have a good-faith belief that the use is not authorized by the copyright owner, its agent, or the law; and
4.2.6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
4.2.7. Your statement must be addressed as follows:
Demand IQ, Inc.
1630 Welton Street, 7th Floor
Denver, CO 80202
4.2.8. Any notice by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA may not be effective and shall not be considered sufficient notice to confer actual knowledge upon Demand IQ of the facts or circumstances of such allegedly infringing material or acts. Please be aware that if you knowingly materially misrepresent that material or activity on the website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
4.2.9. We have the right to disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
These Terms and Conditions apply to your purchase of Promotional Services.
1.1. “Creative Materials” means the creative, advertising, and marketing materials and other relative deliverables provided by Demand IQ to Client. Creative Materials may include, but are not limited to ideas, sketches, initial copy, concepts, proof of concepts, artwork and type, proprietary information, methods and methodologies, documentation, trade secrets, works of authorship, intellectual property, and other proprietary materials, whether protected by intellectual property rights held by Demand IQ or not, or used by Demand IQ in the performance of the Promotional Services. The definition of Demand IQ Materials includes Third-Party Materials, to the extent that Demand IQ Materials contain Third-Party Materials.
1.2. “Deliverables” means the Creative Materials, data, design, development, strategy, analysis, and other related deliverables provided by Demand IQ to Client.
1.3. “Promotional Services” means marketing, data analytics, software development services, graphic design services, including but not limited to website development, logo, visual communications, print media, signs, cards, brochures or other communication designs or layouts, any portion of which or all of which is performed by Demand IQ pursuant to this Professional Agreement. Promotional Services may be selected by Client from a series of service packages as further set forth in an Order Form.
1.4. “Third-Party Materials” means proprietary information, concepts, artwork, type, data, technology, methods and methodologies, software, hardware, documentation, tools, software and interfaces, trade secrets, works of authorship, trademarks and other proprietary materials of a party other than Demand IQ or Client.
Client hereby appoints Demand IQ as its advertising representative and digital agency of record (as further described below) in the United States to arrange for distribution of Creative Materials through the Advertising Channels designated on the applicable Order Form. In furtherance of and without in any way limiting the foregoing, during the Term Demand IQ shall have the right to prepare, develop, market, sell, and arrange for the distribution of Creative Materials, in combination with Client Content, through the Advertising Channels.
2.1. General. Client shall (a) comply with any reasonable guidelines for contributions to Creative Materials that Demand IQ provides generally to its clients; (b) obtain and maintain at all times during the Term, all rights, licenses, permissions, clearances, and approvals, and incorporate any credit or attribution, necessary for Demand IQ to incorporate Client Content into Creative Materials on the Advertising Channels; and (c) ensure that any Client Content does not include, launch, or activate any pop-ups, pop-unders, interstitials, rich media transitionals, spyware, or other harmful code or content.
2.2. Links. Client may not include links to any third-party web site or content in the Client Content provided to Demand IQ for use in the Creative Materials without Demand IQ’s prior written consent.
2.3. Quality Control. The Client Content shall not contain any content, that, in the reasonable opinion of Demand IQ, includes any of the following “Unacceptable Content”: (a) pornographic or other unacceptable adult-themed material, tobacco-related or alcohol-related material, get-rich-quick schemes, products or services involving deceptive marketing practices, lotteries, or gambling; (b) obscene, indecent, profane, or foul language; (c) any spyware, viruses, trap doors, hidden sequences, hot keys, time bombs, easter eggs, or destructive or malicious code; (d) content that (i) may constitute libel, slander, or defamation against any person, (ii) in any way violates, conflicts with, or infringes upon any right of any kind or nature of any person, including any copyrights, trademark rights, patent rights, trade secret rights, moral rights, rights of publicity or privacy, or other rights, or (iii) otherwise causes injury to, or gives rise to any claim by, any person; or (g) Content that violates any terms or conditions of the applicable Advertising Channel.
3.1. Description of Promotional Services. Demand IQ shall provide the Promotional Services as set forth in the applicable Order Form. Demand IQ shall: (i) use reasonable efforts to arrange for the placement of Creative Materials on the Advertising Channels designated on the applicable Order Form; (ii) in its reasonable discretion, specify requirements for format, rotation, and refresh rate of Creative Materials; (iii) establish and administer terminal(s) used to place Creative Materials; and (iv) coordinate the strategy for advertising and marketing through the Advertising Channels. Except as otherwise expressly set forth in the Agreement (including any applicable Order Form), Deliverables are provided “AS IS” and are subject to the warranty, waivers, disclaimers, and limitation of liability set forth in the Agreement.
3.2. Changes. If Client wants to change the Promotional Services it receives, Client will put such change request in writing. Demand IQ will respond within 10 days as to whether it can perform the requested changes, and will note any additional Fees, and time necessary to accomplish such changes. Demand IQ may written notice to the Client, request changes to the applicable Order Form.
3.3. Subcontractors. Client acknowledges that Demand IQ may use subcontractors, as selected by Demand IQ in its sole discretion, and Demand IQ affiliates in the performance of Promotional Services (each, a “Permitted Subcontractor”). Demand IQ will remain responsible for acts and omissions of the Permitted Subcontractors.
4.1. Client will pay Demand IQ the fees set forth in any applicable Order Form executed by the parties.
4.2. The Order Form specifies a Monthly Minimum Budget designated for spending on Promotional Services, including the portion retained by Demand IQ as compensation for Demand IQ’s services. If Demand IQ does not spend the full Monthly Minimum Budget during such calendar month, then the unused portion shall rollover and be available for spending in any subsequent calendar month during the Term. If there are unused funds upon termination of an Order Form, then Demand IQ may apply such unused funds to any fees that remain unpaid by Client as of the effective date of termination.
5.1. Creative Materials. Except with respect to any Client Content incorporated into the Creative Materials, Demand IQ and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to the Creative Materials, including all intellectual property rights therein. Client shall have no right or license to use any Creative Materials except in connection with the Services and solely during the Order Term. All other rights in and to the Creative Materials are expressly reserved by Demand IQ. Client shall not publish, use or display, or permit any third party to use, the Creative Materials other than as expressly set forth in this Agreement.
5.2. License to Deliverables. Subject to the terms and conditions of the Agreement, Demand IQ hereby grants to Client, and Client hereby accepts, a limited, nonexclusive, nontransferable (except in connection with a permitted assignment of the Agreement), nonsublicensable, and revocable (solely upon termination or expiration of the Agreement) right and license to the Deliverables to the extent necessary to enable Client to make reasonable use of such Deliverables and Promotional Services. Demand IQ shall disclose in writing to Client all usage limitations on Demand IQ-provided Third Party Materials prior to their use in any Deliverable.
5.3. Ownership of Deliverables. Except as otherwise provided in a fully executed Order Form, Demand IQ does not perform Promotional Services or create any Deliverables as works-made-for-hire, and Client does not receive any ownership rights in the Deliverables resulting from Promotional Services performed by Demand IQ. Client hereby irrevocably assigns and transfers to Demand IQ all right, title, and interest in and to any Deliverables that may qualify as “works made for hire” as defined under the Copyright Act (17 U.S.C. § 101), including all intellectual property rights therein, in each case without additional consideration. Upon Demand IQ’s reasonable request, Client will promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Demand IQ to prosecute, register, perfect, or record its rights in or to any Deliverables.
6.1. Client Content and Information. Client will provide Demand IQ with the Client Content as well as assistance and information reasonably requested by Demand IQ to perform the Promotional Services. Client acknowledges and agrees that Client owns, is authorized to use, or otherwise legally controls or has the rights to all Client Content. Client shall ensure that the Client Content requested is complete and accurate in all material respects. Client will reasonably cooperate with Demand IQ in providing prompt and timely information, notices, and feedback. If applicable, Client shall provide such access to Client’s premises and such office accommodation and other facilities as may reasonably be requested by Demand IQ, for the purposes of performing the Promotional Services.
6.2. Client Approvals. Client acknowledges that the ability of Demand IQ to perform Services in the timeframe set forth in any Order Form is contingent upon Client’s timely provision to Demand IQ of Client Content and approval of Deliverables. Demand IQ will present Deliverables for to a designated Client contact Client’s review and approval prior to publication. Client will have up to five (5) business days to approve in writing (e-mail is sufficient) such Deliverables. Demand IQ may rely upon an approval of a Deliverable provided by any Client representative If Client notifies Demand IQ in writing (email is sufficient) that such Deliverable is unacceptable, Demand IQ may revise and re-deliver such Deliverable to Client. The foregoing process shall continue until the Deliverable has been approved in writing by Client. If Demand IQ’s performance of the Promotional Services is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Demand IQ shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.