Protoio Inc. Overflow EULA

Last Updated: August 1, 2019

This end user license agreement (this “Agreement”) applies to the Overflow desktop software (“Overflow Software”), the Cloud Services (as defined below) and other Overflow related services provided by PROTOIO INC. (“PROTOIO INC,” “us,” “our,” or “we”) as described below (collectively, the “Overflow Services”).

By registering for an Account (as defined below) to use the Overflow Services and clicking “I Accept”, you agree and acknowledge that you have read all of the terms and conditions of this Agreement, you understand all of the terms and conditions of this Agreement, and you agree to be legally bound by all of the terms and conditions of this Agreement.

If you are entering into this Agreement on behalf of a company (or other entity), you represent that you are an employee or agent of such company (or other entity) and you have the authority to enter into this Agreement on behalf of such company (or other entity).

For the purpose of this Agreement, you and, if applicable, such company (or other entity) constitute “Customer” or “you”.

The “Effective Date” of this Agreement is the date you register for an Account and agree to the terms and conditions of this Agreement.

1. REGISTRATION

1.1.
Accounts. In order to access the Overflow Services, you must (i) register for an account by completing the registration forms provided via the website located at overflow.io (the “Site”) or via the Overflow Software connected to the Internet, and (ii) either (a) provide a Payment Method (as defined below) for the applicable Subscription Fees (as defined below) and purchase of the required number of Seats (as defined below), or (b) signup for a Free Trial (as defined below) in accordance with Section 1.5. Notwithstanding anything to the contrary in this Agreement, PROTOIO INC reserves the right to suspend your account and access to the Overflow Software in the event you fail to meet your payment obligations as set forth in this Agreement.
1.2.
Account Information. You agree to provide accurate information and promptly update your account if it changes. You are responsible for maintaining the confidentiality of your user passwords, IDs, and other credentials and login information (collectively, “Passwords”), and you agree that PROTOIO INC has no liability with respect to the use of any Passwords. You acknowledge that Passwords are personal to each user, and you are responsible for ensuring that each Password is used only by the applicable user. If you permit others to access or use your Account or you purchase Seats (as defined below) for other users in your organization, you are responsible for the activities of such users that occur in connection with your Account.
1.3.
Seats. The Overflow Software cannot be used without the relevant license activation seats (“Seats”), which will (i) be tied to your Account, (ii) permit access to the Overflow Software for a certain number of devices and users, depending on the type and amount of Seats purchased, as further described on the Site or the Overflow Software, and (iii) self-expire and lockout the Overflow Software at the end of your Subscription Period or Free Trial Period (as defined below), unless otherwise renewed.
1.4.
Overflow Software Activation.
1.4.1.
Activation. In order to activate the Overflow Software, you must have an Internet connection and must login to your account when prompted to within the Overflow Software. Upon login, PROTOIO INC will verify your account, Seats, and, if applicable, the payment for the applicable Subscription Period. Upon verification, PROTOIO INC will provide you access to use the Overflow Software in accordance with the terms set forth in this Agreement for the duration of the applicable Subscription Period or Free Trial Period. In the event you attempt to activate additional devices beyond the amount purchased as part of your Overflow Plan or use the Overflow Software in violation of this Agreement, PROTOIO INC reserves the right to deny activation.
1.4.2.
Deactivations. The Overflow Software may be deactivated if one or more of the following occur:
1.4.2.1.
you attempt to activate additional devices beyond the amount specified as part of your Overflow Plan or Free Trial;
1.4.2.2.
periodically at an interval determined by PROTOIO INC, provided that you will receive a warning before any such deactivation to connect to the Internet to validate your subscription;
1.4.2.3.
an error with the Overflow Software;
1.4.2.4.
detection by the Overflow Software of your use in violation of this Agreement; or
1.4.2.5.
the expiration of the applicable Subscription or Free Trial Period.

In the event of a de-activation under this Section 1.4.2, you may be required to reactivate the applicable Overflow Software following the procedure set forth in Section 1.4.1.

1.5.
Free Trials.
1.5.1.
Free Trial Offers. Your access to the Overflow Software may start with a free trial (“Free Trial”). The Free Trial period of your access lasts for the period set forth on registration of your Account (“Free Trial Period”), and is intended to allow you to try the Overflow Services.
1.5.2.
Free Trial Eligibility. Free Trial eligibility is determined by PROTOIO INC at its sole discretion and we may limit eligibility or duration to prevent Free Trial abuse. We reserve the right to revoke the Free Trial and put your Account on hold in the event that we determine that you are not eligible. We may use information such as device ID, physical address, name, or an Account email address used with an existing or recent PROTOIO INC Account to determine eligibility.
1.5.3.
Expiration of Free Trial. Your Free Trial will automatically expire at the end of the Free Trial Period. Upon expiration, you agree to comply with the requirements of Section 5.4. If you wish to continue to use the Overflow Software, please visit the Site and/or your Account to purchase an Overflow Plan.
1.5.4.
Disclaimer. Without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE TRIAL ACCESS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. ACCORDINGLY, ANY USE OF FREE TRIAL PERIODS ARE AT CUSTOMER’S SOLE RISK. PROTOIO INC may terminate Customer’s right to use the Overflow Services during any Free Trial period at any time for any reason or no reason in PROTOIO INC’s sole discretion, without liability.

2. THE OVERFLOW SERVICES

2.1.
Plans and Pricing. PROTOIO INC provides several plans for the Overflow Services with varying lengths and fees (“Overflow Plans”). You will select your plan upon Account registration.
2.2.
Overflow Software License Grant. Subject to the terms and conditions of this Agreement and the payment obligations set forth herein, PROTOIO INC hereby grants to Customer, and Customer accepts, a limited, nonexclusive, non-assignable, non-sublicensable, and nontransferable license, during the applicable Subscription or Free Trial Period, to do the following solely for Customer’s internal business purposes: (i) install the Overflow Software (in object code only) on Customer’s device, and (ii) access and use the Overflow Software as permitted (and in the quantities permitted) under this Agreement. Customer may not modify the Overflow Software in any capacity. PROTOIO INC retains the right to terminate the license upon the terms provided in Section 5 below, and for breaches of Sections 2.3 and 2.4.
2.3.
Cloud Services. The Overflow Services includes the option for Customer to access our cloud services to facilitate sharing and collaboration of Customer Materials (as defined below), as well as other services that may become available from time to time (“Cloud Services”). During the applicable Subscription or Free Trial Period, and subject to the terms and conditions of this Agreement, PROTOIO INC hereby grants Customer a limited, nonexclusive, non-assignable, non-sublicensable, and nontransferable right to access and use the Cloud Services for its internal business purposes. PROTOIO INC retains the right to terminate this right upon the terms provided in Section 5 below, and for breaches of Sections 2.3, 2.4, and 3.2.
2.4.
Grant Restrictions. Customer will use the Overflow Software and the Cloud Services (i) only for its internal business purposes, and not for the internal purposes of any third party, and (ii) only to the extent it is licensed hereunder. Customer will not without PROTOIO INC’s prior written consent in each instance voluntarily or involuntarily in any form or manner assign, sublicense, transfer, pledge, loan or share the Overflow Software or the Cloud Services or any rights under this Agreement to or with any other person or entity, including, without limitation, any assignment or transfer incident to Customer’s merger or consolidation with another entity, or any assignment or transfer by operation of law. Any such assignment, sublicense, transfer, pledge, loan or sharing absent PROTOIO INC’s prior written consent will be void and of no force or effect and will cause the immediate termination of this Agreement. Furthermore, Customer will not publish, disclose or otherwise display in writing, electronically or otherwise any part of the Overflow Software or the Cloud Services without PROTOIO INC’s prior written consent in each such instance, except for internal business purposes which are permitted hereunder, and any such publication, disclosure or display absent PROTOIO INC’s prior written consent which will cause the immediate termination of this Agreement.
2.5.
Use Restrictions. Customer will use the Overflow Software and the Cloud Services only in its original form, and will not permit any third party to: (i) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate or create, attempt to create the source code of the Overflow Software or the Cloud Services or its structural framework (in whole or in part), or perform any process intended to determine the source code for the Overflow Software or the Cloud Services, or assist or otherwise facilitate others to do any of the foregoing; (ii) modify, enhance or create derivative works based upon the Overflow Software or the Cloud Services (in whole or in part), including, without limitation, any derivative works based upon the database structures of the Overflow Software or the Cloud Services, or otherwise change the Overflow Software or the Cloud Services; (iii) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Overflow Software or the Cloud Services or the functionality of the Overflow Software or the Cloud Services; (iv) use the Overflow Software or the Cloud Services for any purpose that is illegal in any way or that advocates illegal activity; (v) alter, remove or obscure any copyright or trademark notice on the Overflow Software or the Cloud Services; (vi) make available the Overflow Software or the Cloud Services through electronic mail or the Internet; (vii) voluntarily or involuntarily in any form or manner assign, sublicense, transfer, pledge, copy, loan, publish, rent, sell, license, distribute or share the Overflow Software or the Cloud Services or any rights under this Agreement to or with any other person or entity, including providing outsourcing or on-line services to third parties; (viii) use the Overflow Software or the Cloud Services to develop a competing product or for any other purpose that is to PROTOIO INC’s commercial disadvantage; or (ix) access or use any portion of the Overflow Software in any manner, except for the permitted use as expressly provided in this Agreement. Customer agrees that any modification, enhancement, derivative work or other improvement to the Overflow Software or the Cloud Services developed by PROTOIO INC, Customer, Customer’s employees or Customer’s independent contractors, whether with or without the consent, advice and/or support of PROTOIO INC, will be the exclusive property of PROTOIO INC and subject to and governed under the terms and conditions of this Agreement, and Customer hereby assigns to PROTOIO INC all such rights, title and interest therein.
2.6.
Maintenance and Support. During the term of this Agreement, PROTOIO INC will use commercially reasonable efforts to provide PROTOIO INC’s then-current standard technical maintenance and support for the Overflow. Support requests may be submitted at https://overflow.io/support .
2.7.
Professional Services. Customer acknowledges and agrees that nothing in this Agreement obligates PROTOIO INC to provide any Professional Services. In the event Customer wishes to receive Professional Services with respect to the Overflow Services or otherwise, the parties shall enter into a separate services agreement.

3. CUSTOMER MATERIALS

3.1.
License to Customer Materials. In connection with the use of the Cloud Services, Customer grants PROTOIO INC a non-exclusive, royalty-free license and right to store, reproduce, and modify the Customer Materials solely as necessary for PROTOIO INC to provide and operate the Cloud Services to Customer. By way of example, such rights include, without limitation, the right to resize and manipulate the Customer Materials, copy Customer Materials for back-up purposes, and provide access to the Customer Materials. For the purposes of this Agreement, “Customer Materials” means any prototype user flow diagrams, including related files, content, data, information or other materials used in the prototype user flow diagrams created by Customer while using the Overflow Software, excluding any PROTOIO INC IP (as defined below).
3.2.
Customer Materials Restrictions. Customer represents and warrants that (i) it has all requisite rights in the Customer Materials required to use such Customer Materials with the Overflow Services as contemplated by this Agreement, (ii) none of the Customer Materials infringe, violate or misappropriate any Intellectual Property Rights (as defined below), rights to privacy, rights to publicity or any other third party rights, (iii) the Customer Materials do not contain any material or information that is obscene, pornographic, indecent or sexually explicit; depicts graphic, excessive or gratuitous violence, derogatory, demeaning, inflammatory, malicious, defamatory, abusive, offensive or hateful, libelous, or slanderous, and (iv) the Customer Materials do not contain any material or information that is illegal or fraudulent or that would encourage, solicit, foster, glorify or provide instructions for any criminal or civil offense.

4. FEES AND PAYMENT TERMS

4.1.
Subscription Fees. Subscription Fees are payable, and Customer agrees to pay such fees, on a monthly, semi-monthly or annual basis, in advance, depending upon the term of your Overflow Plan (the “Subscription Period”). The Subscription Fees do not include taxes. PROTOIO INC will automatically charge the Payment Method provided by Customer for the Subscription Fees due in advance of every Subscription Period.
4.2.
Payment Methods. Unless PROTOIO INC states otherwise, all payments must be made in the applicable currency listed for the Overflow Plan in your region and by a payment card (“Payment Method”). You hereby (i) authorize PROTOIO INC (or its authorized payment processors, which may include, for example, an affiliate of PROTOIO INC operating in your region) to make charges to your designated Payment Method in the applicable amount of the Subscription Fees for the duration of the applicable Subscription Period, at your direction, and (ii) represent and warrant that you are authorized to use and have Subscription Fees charged to the Payment Method you provide to PROTOIO INC. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your Account, PROTOIO INC may suspend your access to the service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
4.3.
No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used Subscription Periods. Following any cancellation, however, you will continue to have access to the Overflow Services through the end of your current billing period.
4.4.
Changes to the Subscription Fees. Notwithstanding any terms to the contrary in this Agreement, (i) PROTOIO INC, at its sole discretion, may modify its pricing during any applicable terms, and such modifications will be effective as of the directly subsequent Subscription Period, and (ii) PROTOIO INC is not be obligated to issue any refunds for fees paid.
4.5.
Interest and Additional Terms. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. You will be responsible for, and will pay all sales and similar taxes on, all license fees and similar fees levied upon the provision of the Overflow Services provided under this Agreement, excluding only taxes based solely on PROTOIO INC’s net income. You will indemnify and hold PROTOIO INC harmless from and against any and all such taxes and related amounts levied upon the provision of the Overflow Services, and any costs associated with the collection or withholding thereof, including penalties and interest.
4.6.
Free Trials. Subscription Fees are not collected for any Free Trials under this Agreement.

5. TERM, TERMINATION AND EFFECTS OF TERMINATION

5.1.
Term.
5.1.1.
If there is a Free Trial, then this Agreement commences on the Effective Date and, unless earlier terminated as set forth in this Agreement, continues for the Free Trial Period as set forth in Section 1.5.
5.1.2.
If there is no Free Trial, then this Agreement commences on the Effective Date and, unless earlier terminated as set forth in this Section 5, continues through the Subscription Period selected by Customer, and thereafter, if applicable, this Agreement will automatically renew for successive periods equivalent in length to the term initially selected (each a “Renewal Subscription Period”). Customer acknowledges that it will not receive notice of a renewal date, and Customer expressly waives the application of New York General Obligation Law section 5-903, and any similar laws, prior to the start of any Renewal Subscription Period.
5.2.
Termination for Convenience. Customer may terminate this Agreement at any time with notice to PROTOIO INC, provided that PROTOIO INC will not issue any refunds. PROTOIO INC may terminate this Agreement prior to any Renewal Subscription Period with no less than 30 days’ notice to Customer or as otherwise provided for herein.
5.3.
Termination for Cause. Either party may terminate this Agreement for cause if the other party breaches this Agreement and does not remedy such failure within 30 days after its receipt of written notice of such breach. Further, PROTOIO INC may suspend use of the Overflow Services (or any portion thereof) without liability if PROTOIO INC is required by any applicable laws to suspend the Overflow.
5.4.
Obligations Upon Termination. Upon termination of this Agreement, (i) all rights granted to Customer hereunder will immediately cease, (ii) Customer will immediately discontinue all use of the Overflow Services, (iii) Customer will promptly uninstall and erase all copies of the Overflow Software from the devices on which it has been installed, and return or, at the option of PROTOIO INC, destroy all copies of the Overflow Software in Customer’s possession or control, (iv) upon request, Customer will certify to PROTOIO INC in writing that it has completed (ii) and (iii) above, (v) PROTOIO INC will immediately cease providing all services under this Agreement, and (vi) Customer will immediately pay to PROTOIO INC all amounts due and payable up to the effective date of termination of this Agreement.
5.5.
Survival. Notwithstanding any terms to the contrary in this Agreement, this sentence and Sections 1.3, 2.4, 2.5, 4, and 6-11 will survive any termination or expiration of this Agreement.

6. FEEDBACK

Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Customer to PROTOIO INC with respect to the Overflow Services or PROTOIO INC (collectively, “Feedback”) will be owned by PROTOIO INC and constitute confidential information of PROTOIO INC which may not be disclosed to any third party. PROTOIO INC will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on Account of Intellectual Property Rights (as defined below) or otherwise.

7. OWNERSHIP AND RESERVATION OF RIGHTS

7.1.
PROTOIO INC IP. As between Customer and PROTOIO INC, PROTOIO INC owns all right, title and interest in and to the Overflow Software, the Cloud Services, and the Overflow Services (and any and all modifications to or derivative works of the Overflow Services), the Feedback and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “PROTOIO INC IP”). PROTOIO INC reserves all rights not expressly granted in this Agreement, and no licenses are granted by PROTOIO INC to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. For the purpose of this Agreement, “Intellectual Property Rights” means 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.
7.2.
Customer IP. As between Customer and PROTOIO INC, Customer owns all right, title and interest in and to the Customer Materials (and any and all modifications to or derivative works of the Customer Materials, excluding any PROTOIO INC IP) and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Customer IP”).
7.3.
Challenge; Registration. Customer agrees never to challenge or contest PROTOIO INC’s or its licensors’ ownership of the PROTOIO INC IP. Customer shall not attempt to register any copyrights, trademarks or service marks, or apply for any patent or other intellectual property protection for the PROTOIO INC IP.

8. WARRANTIES

8.1.
Mutual Warranties. Each party represents and warrants to the other party that: (i) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; and (iii) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound.
8.2.
Disclaimer of Warranties. THE OVERFLOW SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROTOIO INC DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE PROTOIO INC IP, AND ANY THIRD-PARTY SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT PROTOIO INC KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE.

9. INDEMNIFICATION

9.1.
PROTOIO INC, at its sole expense, will defend Customer from and against any and all third party claims, suits, actions or proceedings (each a “Claim”), and indemnify Customer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by PROTOIO INC resulting from or arising in connection with the Overflow Software infringing any Intellectual Property Rights of any third party; provided, that Customer (i) gives prompt notice of the Claim to PROTOIO INC, (ii) grants sole control of the defense (including, granting PROTOIO INC sole right to elect and maintain counsel of its own choosing) of the Claim to PROTOIO INC and settlement of the Claim to PROTOIO INC (except that Customer’s prior written approval will be required for any settlement that reasonably can be expected to result in any ongoing liability to Customer), and (iii) provides reasonable cooperation to PROTOIO INC and, at PROTOIO INC’s request and expense, assistance in the defense or settlement of the Claim.
9.2.
Customer, at its sole expense, will defend PROTOIO INC from and against any and all Claims, and indemnify PROTOIO INC from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) resulting from or arising in connection with any alleged or actual (i) breach of any representation or warranty of Customer, (ii) breach by Customer of this Agreement, or (iii) Claim that Customer Materials infringes or misappropriates the Intellectual Property Rights of any third party.

10. LIMITATION OF LIABILITY

10.1.
IN NO EVENT WILL PROTOIO INC BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PROTOIO INC IP OR ANY THIRD PARTY SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF PROTOIO INC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2.
IN NO EVENT WILL PROTOIO INC’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PROTOIO INC IP OR ANY THIRD PARTY SERVICES EXCEED THE FEES PAID BY CUSTOMER TO PROTOIO INC FOR THE SUBSCRIPTION PERIOD DURING WHICH THE DAMAGES INITIALLY AROSE.
10.3.
NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, PROTOIO INC WILL NOT BE LIABLE FOR ANY DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY INFORMATION, DATA OR CUSTOMER MATERIALS UNLESS SUCH DISCLOSURE, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS SOLELY AND DIRECTLY RESULTS FROM PROTOIO INC’S GROSS NEGLIGENCE.
10.4.
MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

11. MISCELLANEOUS

11.1. Entire Agreement

This Agreement including all of the other terms and conditions incorporated into this Agreement by reference set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersede all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom, unless Customer has a negotiated and written Software Licensing Agreement executed by the parties, which expressly supersedes this Agreement.

11.2. Governing Law and Dispute Resolution

This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California, will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Prior to the filing or initiation of any action or proceeding relating to this Agreement, the parties must participate in good faith mediation in San Francisco County, California. If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.

11.3. Independent Contractors

Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

11.4. Assignment

Customer may not assign, delegate or transfer (by sale, merger, operation of law or otherwise) this Agreement or any right, title, interest or obligation hereunder without the prior written consent of PROTOIO INC Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. PROTOIO INC may assign this Agreement without Customer’s prior written consent. This Agreement will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of this Agreement.

11.5. Force Majeure

Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable, in whole or in part, to any cause beyond its reasonable control, including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of Overflow by any service providers being used by PROTOIO INC to host the Overflow or to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (each a “Force Majeure Event”).

11.6. Electronic Communications

PROTOIO INC may choose to electronically deliver all communications with Customer, which may include email to the email address Customer provides to PROTOIO INC PROTOIO INC’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Customer agrees to do business electronically with PROTOIO INC and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.

11.7. Severability

If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision or portion will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

11.8. Notice for California Users

If you are a California resident, you may have this Agreement mailed to you electronically by sending a letter to support@overflow.io with your electronic mail address and a request for this Agreement. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.

11.9 Questions

If you have any questions regarding the use of the Overflow, please send an email to support@overflow.io.