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1. Acceptance of the Terms of Use

The following terms and conditions, together with any referenced documents (collectively, "Terms of Use") form a legal agreement between you and your employer, employees, agents, contractors and any other entity on whose behalf you accept these terms (collectively, “you” and “your”), and OptimumDesk, Inc. (“OptimumDesk,” “we,” “us” and “our”). The Terms of Use apply to the demonstration services available on the website where these Terms of Use are presented, including any OptimumDesk Intellectual Property (as defined below) therein (the “Demo Website”).

By accessing or using the Demo Website, or by clicking to accept or agree to the Terms of Use when this option is made available to you, you represent that you have read and understood, and agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, you may not use the Demo Website.

Personally identifiable information collected about you by this Demo Website is treated in accordance with the Privacy Policy, which is hereby incorporated into these Terms of Use by reference. If you do not agree to these Terms of Use or the Privacy Policy, you must accept these Terms of Use or access the Demo Website.

Access

We reserve the right to terminate or modify the Demo Website in whole or in part, in any manner in our sole discretion, without notice. We will not be liable if, for any reason, all or any part of the Demo Website is unavailable at any time or for any period. From time to time, we may restrict access to all or part of the Demo Website to a subset of permitted users. You are solely responsible for making all arrangements necessary for you to access the Demo Website.

You shall use the Demo Website exclusively to test and evaluate the OptimumDesk product and service, and you shall access it only through the registration portal, regardless of any previous registration or access. To access portions of the Demo Website or certain resources, you may be asked to provide certain registration details or other information. It is a condition of your use of the Demo Website, and you hereby represent and warrant, that all information you provide is correct, current and complete. You must logout from the Demo Website at the end of each session. You agree that you are solely responsible to us for all activities identified with your access and registration. OptimumDesk has the absolute right to disable any user name or password, at any time, for any reason, including, if in our sole discretion we believe that you have failed to comply with any provision of these Terms of Use.

Data Visible to Other Users

The Demo Website is a collection of shared instances that automatically reset on a timed schedule. Anything input by a user of the Demo Website that remains on an instance following your use will be visible and usable to all other users that access the same instance before it is reset. In addition to the rights provided to OptimumDesk above, you hereby grant to all users of the Demo Website a royalty free, fully paid, non exclusive, non transferable, sub licensable, worldwide right to use any data and intellectual property provided by you to each other user of the Demo Website solely to use the Demo Website as described herein.

2. Prohibited Uses

You agree not to access or use (and shall not permit others to access or use) the Demo Website or OptimumDesk Intellectual Property in any manner:

  • • Other than for product evaluation purposes (specifically excluding product demonstration, development, or any production or commercial purposes).
  • • To process, use, transmit or introduce any confidential or sensitive information of any kind, including personally identifiable information, sensitive personal data, health information of any kind, or factual data regarding your employees or third data, and particularly excluding: (1) information protected under the privacy or security regulations issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or subject to the Health Information Technology for Economic and Clinical Health (HITECH) Act; or (2) non public sensitive or personally identifiable information including but not limited to drivers license numbers, passport numbers, social security numbers, tax identification numbers, voter registration numbers or similar identifying numbers, health information, or financial information including bank, checking, credit card, debit card, or other account numbers.
  • • To license, sub license, sell, re sell, rent, lease, transfer, distribute or time share or otherwise make them available for access by third parties.
  • • To disassemble, reverse engineer, decompile or modify them or otherwise create derivative works of them.
  • • To access them for the purpose of developing a product or service that competes with a OptimumDesk Product.
  • • To use them to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or engage in any other malicious act.
  • • To disrupt their security, integrity or operation.
  • • To remove or modify a copyright or other proprietary rights notice in them.
  • • To use them to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner.
  • • To use them to damage the property of another.
  • • That violates any applicable federal, state, local or international law or regulation, or advocates, promotes or assists in any unlawful act, constitutes an illegal threat or violates export control laws.
  • • That temporarily or permanently alters, erases, removes, copies, modifies, halts or disables any OptimumDesk or third party data, software or network.
  • • That violates the rights of any person or entity that may give rise to civil or criminal liability under applicable laws or regulations applicable to you, another user, and/or OptimumDesk, including violation of privacy or publicity rights, infringement of any copyright, patent, trademark, trade secret or other intellectual property right, or conflicts with these Terms of Use or the Privacy Policy.
  • • To transmit or introduce offensive materials, including those involving profanity, violence, sexual conduct, pornography or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • • To monitor or attempt to gain unauthorized access to: (1) an account or computer not belonging to you; (2) any data, information or communications on any network or system not owned by you, without authorization; (3) any system or network user accounts or passwords of other users, without authorization; or (4) e mail addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, password robbery, spidering and harvesting).
  • • That is false, deceptive, misleading or fraudulent, including but not limited to: (1) any attempt to impersonate any person or entity, including any other user, OptimumDesk or a OptimumDesk employee; (2) to misrepresent your identity or affiliation with any person or organization; and (3) any attempt to give the impression that you are posting materials from any person or entity other than yourself if that is not the case, including but not limited to altering your IP source address.
  • • To monitor or copy materials on the Demo Website for any unauthorized purpose or access the Demo Website via any automatic device, process or means of access such as a robot or spider.
  • • That may have a detrimental effect on the Demo Website’s function, user interaction or security, including but not limited to: (1) gaining unauthorized access to, or attempting to compromise the security of, any network, system, computing facility, equipment, data or information; (2) attempting to intercept, redirect or otherwise interfere with communications intended for others; (3) disabling, damaging overburdening or impairing the Demo Website or any server, computer or database connected to or accessed by the Demo Website; (4) modifying, blocking or otherwise interfering with the display of the Demo Website; (5) interfering with another user’s ability to access, use and enjoy the Demo Website; (6) accessing another user’s registration information or user account without that user’s express written permission; (7) transmitting or introducing any malicious or technologically harmful element to the Demo Website such as a spyware program, virus, Trojan horse, worm or logic bomb; (8) performing, without OptimumDesk’s express prior written authorization, scalability testing, load testing, probing, scanning, penetration or vulnerability testing of the Demo Website, including without limitation the Community Services; and (9) engaging in any activities that results in any server being the target of a denial of service attack.

Notification of Violation

If you become aware of any violation of these Terms of Use by any person, including other users or third parties, you shall immediately notify OptimumDesk via e mail to contact@optimumdesk.com.

3. Intellectual Property

As between you and OptimumDesk, all rights, title and interest in and to all the intellectual property rights in the OptimumDesk Intellectual Property are owned exclusively by OptimumDesk and its licensors, notwithstanding any other provision in these Terms of Use or any other agreement. The OptimumDesk Intellectual Property is protected by United States and international laws regarding copyrights, trademarks, trade secrets and other intellectual property or proprietary rights. As used herein, “OptimumDesk Intellectual Property” means the information, text, displays, images, video, audio, and user interfaces included in or generated by the Demo Website, and the design, selection and arrangement thereof, as well as the technology that is used by OptimumDesk to deliver the Demo Website, including: (a) software code (whether in source or object form) including platforms and applications, hardware, algorithms, templates, graphical user interfaces, architectures, class libraries, application programming interfaces, objects, methodologies, and documentation (both printed and electronic) in existence as of the Effective Date or otherwise acquired or developed by OptimumDesk apart from the services rendered under these Terms of Use; and (b) any derivative works, improvements, enhancements or extensions of the foregoing made by ether you or OptimumDesk. Except as expressly provided in this Agreement, OptimumDesk does not grant you (and expressly reserves) any rights, express or implied, or ownership in the OptimumDesk Intellectual Property. No right, title or interest in or to the Demo Website is transferred to you. OptimumDesk reserves all rights not expressly granted to you herein. You hereby grant to OptimumDesk a royalty free, fully paid, non exclusive, non transferable, sub licensable, worldwide right to use: (a) electronic data uploaded or processed by you to the Demo Website; and (b) any software, methodologies, templates, business processes, documentation or other material authored, invented or otherwise created by you using or for use with the OptimumDesk Intellectual Property provided by you to OptimumDesk solely to provide the Demo Website. Customer Technology does not include, and Customer will have no ownership of intellectual property in, OptimumDesk Core Technology. Any use of the Demo Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws. You are permitted to use the Demo Website only for legitimate business purposes related to your role as a current or prospective customer, supplier or partner of OptimumDesk. You shall not copy, modify, create derivative works of, publicly display or perform, republish, download or store, or transmit any OptimumDesk Intellectual Property without OptimumDesk’s express prior written consent or except as expressly provided in these Terms of Use.

OptimumDesk Trademarks

OptimumDesk, “now” with a stylized power button, the “NOW” family of marks, and all related, logos, product and service names, designs and slogans are trademarks or service marks of OptimumDesk or our affiliates or licensors. You must not use such marks without our prior written permission. All other names, brands and marks are used for identification purposes only and are the trademarks of their respective owners.

4. Monitoring, Enforcement and Feedback

The Demo Website is a shared environment. OptimumDesk has the right but not the obligation to:

  • • Terminate your access to all or part of the Demo Website for any reason or no reason, in our sole discretion, including without limitation any violation of these Terms of Use or the Privacy Policy.
  • • Disclose your identity to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Demo Website.

Without limiting the foregoing, OptimumDesk has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone including any materials on or through the Demo Website. YOU WAIVE AND HOLD OPTIMUMDESK HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY OPTIMUMDESK DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER OPTIMUMDESK OR LAW ENFORCEMENT AUTHORITIES.

OptimumDesk can neither review all material before it is included on the Demo Website nor ensure prompt removal of objectionable material after it has been posted and assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third parties. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.

Feedback & Suggestions

Direct feedback, comments, suggestions, requests for support and other communications relating to the Demo Website to: info@OptimumDesk.com. OptimumDesk shall have a royalty free, worldwide, non exclusive, transferable, sub licensable, irrevocable, perpetual right and license to make, use, sell, offer for sale, import or otherwise incorporate for any purpose, any feedback, and suggestions for improvements or enhancements to the Demo Website and the OptimumDesk Products.

5. Legal Considerations

Regional Legal Considerations

The owner of the Demo Website is based in the state of California in the United States. The Demo Website can be accessed from countries around the world. Access to the Demo Website may not be legal by certain persons or in certain countries. If you access the Demo Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Access to the Demo Website from territories where the Demo Website or any of its services or products are illegal is prohibited. You acknowledge that you remain responsible at all times for your compliance with U.S. and all applicable export and related statutes and regulations.

Disclaimer of Warranties

OptimumDesk cannot and does not promise or warrant that any aspect of the Demo Website is free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL OF SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE DEMO WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE DEMO WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE DEMO WEBSITE, INCLUDING ANY WEBSITE CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE DEMO WEBSITE, IS AT YOUR OWN RISK AND PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER OPTIMUMDESK NOR ANY PERSON ASSOCIATED WITH OPTIMUMDESK MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE DEMO WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER OPTIMUMDESK NOR ANYONE ASSOCIATED WITH OPTIMUMDESK REPRESENTS OR WARRANTS THAT THE DEMO WEBSITE WILL BE ACCURATE, RELIABLE, ERROR FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE DEMO WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE DEMO WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

OPTIMUMDESK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE DEMO WEBSITE AND THE WEBSITE CONTENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

Limitation of Liability

EXCEPT TO THE EXTENT THAT A DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL OPTIMUMDESK, ITS AFFILIATES AND ITS LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE DEMO WEBSITE, INCLUDING ANY WEBSITE CONTENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

Indemnification

You agree to defend, indemnify and hold OptimumDesk, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees and other costs of defense) resulting from your violation of these Terms of Use or your use of the Demo Website, including, without limitation, any use of the Demo Website's content, services and products other than as expressly authorized in these Terms of Use or your use of any information obtained from the Demo Website.

Governing Law and Jurisdiction

These Terms of Use and any dispute or claim arising out of, or related to, them, their subject matter or their formation (in each case, including non contractual disputes or claims) shall be governed by and construed in accordance with the internal laws of the State of California in the United States without giving effect to any choice or conflict of laws provision or rule (whether of the State of California or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, these Terms of Use or the Demo Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the Santa Clara, California although we retain the right to bring any suit, action or proceeding against you for breach of these Terms of Use in your country of residence or any other relevant country. You hereby irrevocably waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Export Restrictions

You may not access, download, use or export materials posted to the Demo Website in violation of U.S. export laws or regulations, including the Export Administration Regulations (EAR), or in violation of any other applicable export or import laws or regulations. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority.

Waiver and Severability

No waiver of these Terms of Use by OptimumDesk shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of OptimumDesk to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

Third Party Beneficiaries

There are no third party beneficiaries to this agreement.

Classification of Website and OptimumDesk Products

In the event of a dispute, the categorization of any subject matter as either the Demo Website or a OptimumDesk Product shall be made by OptimumDesk in its sole discretion, and OptimumDesk may reclassify as a OptimumDesk Product subject matter previously included in the Demo Website.

Termination

OptimumDesk may terminate these Terms of Use at any time for any reason by giving you written notice, and all licenses, permissions and other rights granted to you hereunder shall immediately terminate. Notwithstanding the termination of this Agreement for any reason, Sections 3 and 5 herein shall survive.

Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and OptimumDesk with respect to the Demo Website and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Demo Website. For the avoidance of doubt, these Terms of Use do not supersede any Master Ordering Agreement, subscription agreement or other agreement pursuant to which you have been granted the right to use or access a OptimumDesk product or service.