Protoio Inc. Overflow Beta EULA

Last Updated: May 18, 2018

This end user license agreement (this "Agreement") apply to the beta version of the Overflow software and services provided by PROTOIO, Inc. ("Protoio inc.", "us", "our", "we") as described below ("Overflow Beta") via https://overflow.io (the "Site").

By registering to use the Overflow Beta or accessing any portions of the Overflow Beta, 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 first access the Overflow Beta.

1. Registration

In order to access the Overflow Beta, you must register with Protoio inc. by completing the registration forms provided via the Site or via the Desktop App (as defined below), using the license key (the "Key") you obtained via the Site or otherwise communicated to you by us. The Key will permit access to the Overflow Beta for a certain number of devices and users, depending on the type of Key obtained, as further described on the Site or Desktop App. You agree to provide accurate information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account.

2. Overflow Beta Offerings

Overflow Beta is a beta version of a downloadable application that can be downloaded and installed on your device/machine ("Desktop App"). Optionally, you may also have the ability to use a subscription to access Overflow Beta via our cloud services ("Cloud Option) to upload Customer Materials (as defined below) to Protoio inc. servers and be issued a link to share with others in order to grant access to the uploaded Customer Materials. A more detailed description of Overflow Beta, the Cloud Option and the Desktop App together with the applicable terms can be found at https://overflow.io/pricing ("Overflow Beta Offerings"), and such descriptions and terms are incorporated in this Agreement by reference.

Subject to this Agreement, Protoio inc. grants to Customer a limited, non-transferable, non-exclusive and non-sublicenseable right and license, during the term applicable to the Overflow Beta Offerings option selected by Customer, to use the Overflow Beta solely for Customer’s business purposes.

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 Beta described at https://overflow.io/support.

3. Customer Materials -- For Cloud Option

Any files, content, data, information or other materials (collectively, "Customer Materials") used by Customer in connection with the Overflow Beta must meet the requirements set forth in this Agreement.

In connection with the use of the Overflow Beta via the Cloud Option, Customer grants Protoio inc. a non-exclusive, royalty-free right to store, reproduce, and modify the Customer Materials solely in order for Protoio inc. to provide and operate the Overflow Offerings via the Cloud Option. 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.

Customer represents and warrants that (a) it has all requisite rights in the Customer Materials required to use such Customer Materials with the Overflow Beta as contemplated by this Agreement, (b) none of the Customer Materials infringe, violate or misappropriate any intellectual property rights, rights to privacy, rights to publicity or any other third party rights, (c) 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 (d) 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. Term, Termination and Effects of Termination

Unless terminated as expressly set forth in this Agreement, the term of this Agreement will be for the term applicable to the Overflow Beta Offerings option selected by Customer.

Customer may terminate this Agreement at any time with notice to Protoio inc..

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 Beta (or any portion thereof) without liability if Protoio inc. is required by any applicable laws to suspend the Overflow Beta.

Upon any expiration or termination of this Agreement, all rights and licenses granted to Customer under this Agreement will immediately terminate.

Notwithstanding any terms to the contrary in this Agreement, this sentence and Sections 5, 6, 7, 8, 9 and 10 will survive any termination or expiration of this Agreement.

5. 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 Beta or Protoio inc. (collectively, "Feedback") will constitute confidential information of Protoio inc. and 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.

6. Ownership and Reservation of Rights

As between Customer and Protoio inc., and subject to Section 1, Protoio inc. owns all right, title and interest in and to the Overflow Beta (and any and all modifications to or derivative works of the Overflow Beta), the Feedback and any and all Intellectual Property Rights embodied in the foregoing (collectively, the "Protoio inc. IP"). Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party 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. Restrictions

Except as expressly authorized by this Agreement, Customer may not (a) modify, disclose, alter, translate or create derivative works of the Overflow Beta (or any components thereof), (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Overflow Beta (or any components thereof), (c) disassemble, decompile or reverse engineer the software components of the Overflow Beta (except to the extent and for the express purposes authorized by applicable laws), (d) access the Overflow Beta in order to build a competitive product or service, or copy any features or functions of the Overflow Beta, (e) interfere with or disrupt the integrity or performance of the Overflow Beta, (f) attempt to gain unauthorized access to the Overflow Beta or their related systems or networks, (g) disclose to any third party any performance information or analysis relating to the Overflow Beta, or (h) permit or otherwise allow anyone to do any of the foregoing.

8. Disclaimer

THE OVERFLOW BETA IS 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. Limitation of Liability

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.

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 TERM DURING WHICH THE DAMAGES INITIALLY AROSE.

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.

MULTIPLE CLAIMS, SUITS, ACTIONS OR PROCEEDINGS WILL NOT EXPAND THIS LIMITATION. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

10. Miscellaneous

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.

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.

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.

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.

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 Beta by any service providers being used by Protoio inc. to host the Overflow Beta 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").

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.

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.

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.

Questions

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