If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version shall prevail. The User should keep a copy of this ToU for his records. The latest version of this ToU appears in its entirety on https://demodesk.com/terms-of-use. Demodesk reserves the right, in its sole free discretion, to make reasonable amendments to this Agreement from time to time provided that disputes arising hereunder will be resolved in accordance with the Terms of the Agreement in effect at the time the dispute arose. Demodesk will inform the User after each amendment in due way and the User should review the published Agreement from time to time to become aware of changes. Material changes to these terms will be effective upon the User’s first use of the Software with actual knowledge of such change. Any use of the Software by the User after the amended Agreement becomes effective constitutes the User’s acceptance of the amended Agreement. If the User does not accept amendments made to this Agreement, then this Agreement will be immediately terminated pursuant to Sec. 12.
1. PROVISION OF SOFTWARE AS A SERVICE.
Demodesk will make the Software available to the User and use commercially reasonable efforts to make the online Software available as Service 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Demodesk shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Demodesk’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Demodesk’s employees), Internet service provider failure or delay, hosting service provider failure or delay, Non-Demodesk Application, User Generated Content or denial of service attack.
The Software is neither sold nor licensed.
The User has the right to access and use SaaS subject to the terms of this Agreement and the Documentation. The User grants Demodesk, its Affiliates according to section 15 German Stock Company Act (§ 15 AktG) and applicable contractors a worldwide, limited-term license to host, copy, transmit and display his uploaded data information, and any Non-Demodesk Applications and program code created by or for the User using a Service or for use by the User with the Services, as reasonably necessary for Demodesk to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, Demodesk acquires no right, title or interest from the User or his licensors under this Agreement in or to any of the User’s uploaded data information, Non-Demodesk Application or such program code.
2. CLOUD STORAGE & SECURITY.
Demodesk will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Software and/or Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Software and/or Data by Demodesk personnel except (i) to provide the subscribed services and prevent or address service or technical problems, (ii) as compelled by law, or (iii) as the User expressly permits in writing. Sec. 7 shall remain unaffected.
3. NO LICENSING.
The Software is provided as SaaS and no license is granted to User. In particular, the provision of SaaS does not include any exploitation rights, in particular but not limited any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG).
4. RESERVED RIGHTS.
The User acknowledges and agrees that the Software is a proprietary product of Demodesk protected by copyright and other applicable intellectual property laws and treaty provisions. The User further acknowledges and agrees that the entire right, title, and interest in and to the Software including associated intellectual property rights, shall remain with Demodesk. Demodesk retains all rights not expressly granted to the User in this ToU.
THE SOFTWARE IS PROVIDED AS SOFTWARE-AS-A-SERVICE.
5. PURCHASING CONDITIONS.
5.1. Subscription plans: Demodesk Software is ordered online and provided on a subscription basis in different plans as described by the price lists available at https://demodesk.com/pricing and as applicable at the time the subscription is ordered.
5.2. Term: Demodesk offers 2 (two) Term options: (i) an Annual Subscription with a 12 (twelve) month Term or (ii) a Monthly Subscription with a 1 (one) month Term (“Monthly Subscription”), each with an Automatic Renewal for an additional Term unless terminated within 1 (one) month to the end of the Term.
5.3. Fee: Depending on the agreed subscription plan User has to pay to Demodesk a monthly or annual subscription Fee as specified in Sec. 5 at the beginning of each term.
5.4. Increasing number of licenses: The User has the option to increase the number of licenses at any time with immediate effect under the following conditions: In case the User increases the number of licenses within an Annual Subscription, the Fee will be adjusted accordingly on a pro rata basis and the User will be charged for the increase of Fee the next day. In case the User increases the number of licenses within a Monthly Subscription, the Fee will be adjusted accordingly on a pro rata basis and the User will be charged for the increase of the Fee at the end of the then current term. The Subscription will be auto renewed for the amount of licences that Customer booked at the last day of each term.
5.5. Decreasing number of licenses: The User has the option of decreasing the number of licenses at any time with effect to the end of the Term. The Fee will be reduced for the next Term, while the Fee for the current Term needs to be paid in full. For annual contracts with Auto-Renewal, the minimum amount of Seats of the new Term is the amount of Seats subscribed for in the initial contract.
5.6. Features: Depending on the agreed subscription plan License is limited to the features specified in this Sec. 5.
5.7. Free Trial: User may test the software free of charge for a maximum of 30 (thirty) days after registration at Demodesk. Sec. 11 shall apply. Upon termination of Free trial period, no paid subscription is concluded between the parties. Demodesk may at its own discretion delete the account of the User.
5.8. Audio Conference: Demodesk offers an audio conferencing feature with Dial-Out Option to User. Demodesk charges a service fee for Dial-Out Option of 0.08 EUR per started minute of use of Dial Out Option.
5.9. Support: Depending on the agreed subscription plan Demodesk provides certain service levels as specified at https://demodesk.com/pricing and as applicable at the time the subscription is ordered.
The User acknowledges that registration is required in order for the User to utilize the full benefits of the Software. If the User is not registered as the End User, the User has no right to access the software and the limited warranty in this ToU does not apply.
7. NO RENTAL OR COMMERCIAL HOSTING.
The Software is provided as SaaS for the User only. The User may only rent, lease, lend, or provide commercial hosting services with the Software upon Demodesk’s prior written consent.
8. DATA CAPTURE AND USE.
The User agrees that Demodesk may collect and utilize technical information gathered as part of the Software support services and SaaS provided to the User. Data captured in this form will only be used to improve Demodesk Products and/or provide customized services to the User and will not be disclosed or disseminated to third parties except in an anonymized form.
9. BACKUP OF DATA.
The setup of a functional hardware and software environment for use of the Software shall be solely in the User’s responsibility. The same shall apply to regular data backup.
10. NO AUTOMATED USE.
A subscription for the SaaS may not be shared or used concurrently on different Devices, nor to support multiple Users or operational requests as indicated above. As a result, the User may not use the SaaS in an automated, unattended, non-interactive server application or component (including ASP) where: (i) multiple User requests from different Users are queued for processing; or (ii) multiple requests from one User are queued for processing but acting against content created or edited by other Users.
11. RESTRICTIONS ON CERTAIN SOFTWARE.
Software identified as free trial, demo, evaluation, and Beta versions may not be used for any purpose other than the User’s testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both the User and Demodesk.
If the User breaches the terms and conditions of this ToU, Demodesk may terminate this ToU without prejudicing any of its other rights. In such event the User must cease use of the Software with immediate effect. Sections 1, 4, 13, 14, 15, 16, 18, 19, and 20 specifically survive termination.
13. LIMITED WARRANTY.
13.1. State of the art: Unless expressly agreed otherwise, the SaaS provided by Demodesk shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications provided by Demodesk, including those in the Documentation. Demodesk does not warrant that the Software under the agreement will be fit for purposes beyond the fulfillment of Demodesk’ obligations under the Agreement.
13.2. Errors: The User is advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence. The Parties acknowledge that Demodesk Products are inherently complex and may not be completely free of errors. The following errors are excluded from Demodesk’ warranty: (i) insignificant defects, including but not limited to errors that can be easily corrected and will not show up as a performance defect and (ii) defects discovered in any Demodesk Product that has been modified, altered, or enhanced by anyone other than Demodesk itself.
13.3. Rectificaton: Defects in the Software shall be rectified by Demodesk within a reasonable period after notification of the defect. The rectification of defects shall be effected, at Demodesk' choice, by way of repair or substitute the Software free of charge. The User's right to reduce the Fee for the time the defect persists remains unaffected. The User is only entitled to an extraordinary termination of the agreement due to the failure to grant use in accordance with the agreement if Demodesk has been given sufficient opportunity to rectify the defect and such attempt has failed.
13.4. Limitation: If Demodesk has provided the User with the SaaS against no payment whatsoever, defects in the Software shall be rectified by Demodesk only in case they were resulting from gross negligent or intentional behavior of Demodesk, provided however rectification of a defect in the Software is not otherwise mandatory according to statutory law.
13.5. Failure in rectification: It shall be assumed that the repair or substitution of Software has failed only if Demodesk has been given sufficient opportunity to effect a repair or substitution delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by Demodesk. If rectification of a defect in the form of repair or subsequent delivery is only possible for Demodesk at unreasonable expenses, Demodesk may refuse to rectify the defect and refer the User to his right to rescind or terminate the Agreement.
13.6. Source Code: In no event shall the User be entitled to demand the source code for the Software in regard to any defects.
14. HIGH RISK ACTIVITIES.
The Software is not fault tolerant and is not designed, manufactured, or intended for use or resale as control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage (the"High Risk Activities"). Accordingly, Demodesk and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
15. LIMITATION OF LIABILITY.
Notwithstanding the legal nature of the relevant claim, the following shall apply to the User’s damage claims and claims for expenses incurred in vain ("Ersatz vergeblicher Aufwendungen"):
15.1. Limitations of liability: Demodesk shall be liable for any of the User’s damages resulting from gross negligent or intentional behavior of Demodesk, which are due to culpable injury to life, body, and health, which arise due to the assumption of a guarantee or according to the Product Liability Act. In all other cases Demodesk’ liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations which fulfillments allow the proper execution of the agreement in the first place and where the User may rely on the compliance with these obligations. Demodesk’ liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to the User’s obligation for regular data backups according to Sec. 10 of this ToU.
15.2. Foreseeable damages: Demodesk’ liability in case of negligent infringement of material obligations of the agreement by Demodesk shall be limited to foreseeable damages which are typical for this type of contract.
15.3. Exclusion: A strict liability of Demodesk for defects existing at the time of entering into this ToU pursuant to section 536 a para. 1, alternative 1 German Civil Code (BGB) is hereby expressly excluded.
15.4. Statue of limitation: All claims against Demodesk for damages shall be statute barred 6 months after delivery, in case the User is an Entrepreneur. This shall not apply to any claims in tort.
15.5. Further limitation: If Demodesk has provided the User with the SaaS against no payment whatsoever, Demodesk’s liability is further limited by section 599 BGB to damages resulting from gross negligent or intentional behavior of Demodesk.
15.6. Excluded liability: Demodesk has no liability for any loss, damage, or misappropriation of data information provided by the User under any circumstances or for any consequences related to changes, restrictions, suspensions, or termination of the Services or the Agreement or caused by User Generated Content.
15.7. Representatives: The foregoing limitations of liability also apply with regard to all Demodesk’ representatives, including but not limited to its directors, legal representatives, employees, and other vicarious agents.
16. RESTRICTIONS IN USE.
16.1. Unauthorized access: The User will use commercially reasonable efforts to prevent unauthorized access to or use of Services and Data, and notify Demodesk promptly of any such unauthorized access or use and use Services and Data only in accordance with this Agreement, Documentation and applicable laws and government regulations.
16.2. Restrictions in use: The User will not (i) make any Service or Data available to, or use any Service or Data for the benefit of, anyone other than the User or Users, unless expressly stated otherwise, (ii) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Data, or include any Service or Content in a service bureau or outsourcing offering, (iii) use a Service to capture and store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (v) attempt to gain unauthorized access to any Service or Data or its related systems or networks, (vi) permit direct or indirect access to or use of any Service or Data in a way that circumvents a contractual usage limit, or use any of Demodesk Services to access or use any of Demodesk’ intellectual property except as permitted under this Agreement, (vii) copy a Service or any part, feature, function or user interface thereof, (viii) copy Data except as permitted herein, (ix) frame or mirror any part of any Service or Data, other than framing on the User’s own intranets or otherwise for the User’s own internal business purposes, (x) access any Service or Data in order to build a competitive product or service or (xi) reverse engineer any Service (to the extent such restriction is permitted by law) or (l) enter any real account data and/or passwords in a demo-session. Any use of the Services in breach of this Agreement, by the User or Users that in Demodesk’ judgment threatens the security, integrity or availability of Demodesk Services, may result in Demodesk’ immediate suspension of the Services, notwithstanding that Demodesk will use commercially reasonable efforts to provide the User with notice and an opportunity to remedy such violation or threat prior to such suspension.
16.3. Reasonable Use: Demodesk provides video conferencing services for business collaboration. Demodesk anticipates that customers will use the services in a reasonable manner given the business purpose. As such, Demodesk may limit, suspend or terminate access if an End User’s use exceeds reasonable standards, and may monitor usage based on (i) meeting lengths; (ii) uninterrupted meeting recordings; (iii) excessive recorded meeting length; (iv) calls made outside of business hours; (v) other calling patterns indicative of an attempt to evade enforcement of Reasonable Use Demodesk may determine that abnormal, unreasonable or impermissible usage is occurring based on industry standards and patterns of usage of the Services, and may take appropriate steps, including suspension or termination of service. Demodesk may first contact the Customer and discuss appropriate usage and suitable plans to support valid use of the Services.
16.4. Expected screen share performance: Demodesk’s virtual screens perform similar to a computer with 8 GB of RAM and 4 CPU cores without integrated graphics. When sharing computationally expensive resources (e.g. large datasets, 3D applications) the screen share can get laggy. The sharing performance of these resources can be tested during Demodesk’s free trial period.
17. INTEGRATION OF 3RD PARTY ACCOUNTS, CUSTOMER SHARING, SESSION COOKIES, RECORDING, ANALYTICS.
17.1. Third party accounts: Certain features of the SaaS allow User to integrate his account with third party services (the “Third Party Accounts”) like e.g. Gmail, Salesforce, LinkedIn etc. via Application Programming Interface (the “API”) provided by such third party. By enabling those features, User grants to Demodesk access to data stored in Third Party Accounts provided via API and certain rights to use functions of Third Party Accounts provided via API, like e.g. sending out e-mails for invitations of scheduled demo sessions etc., as far as agreed upon while activating integration of a Third Party Account, such as e.g. e-mails, inbox history, contacts etc., to enable Demodesk to identify relevant data to be stored within the SaaS or to execute certain communications with contacts of the User.
17.2. Exteral user sharing: Certain features of the SaaS allow User to share a web application with one or more External User(s) like e.g. Salesforce, via interactive meetings (with e.g. the option to instantly share mouse and keyboard control with a customer). By using this feature, User may grant to External User insight or access to private and potentially personal data stored in web application. User understands the he bears sole responsibility for (i) the use of such feature with External Users and (ii) adherence to any applicable data protection laws in this regards.
17.3. Session Cookies: Certain features of the SaaS allow User to save a session cookie on our cloud servers. This feature is disabled by default. User understands that he bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature.
17.4. Audio, Video and Screen Sharing Recording: Certain feature of the SaaS allow User to record the audio, video and screen sharing streams transmitted in a session on our cloud servers. This feature is disabled by default and needs to be activated by User before each session. User can activate either (i) recording of his own audio, video and screen sharing streams only or (ii) recording also audio, video and screen sharing streams by all individuals (whether or not they are Demodesk users) who are present in a session. User understands that he bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature. Demodesk saves recordings for a maximum of 12 months before they get permanently deleted.
17.5. Audio, Video and Screen Sharing Analysis: Certain feature of the SaaS allow User to analyze the audio, video and screen sharing recordings according to Sec. 17.4 by transcribing and saving such analysis on our cloud servers. This feature is disabled by default and needs to be activated by User before each session. User can activate either (i) analysis of his own audio, video and screen sharing stream only or (ii) also analysis of the audio, video and screen sharing stream by all individuals (whether or not they are Demodesk users) who are present in a session. User understands that he bears sole responsibility for (i) the use of such feature and (ii) adherence to any applicable data protection laws by using this feature.
THE USER IS EXPRESSLY ADVISED BY DEMODESK OF AND UNDERSTANDS AND ACCEPTS POTENTIAL RISKS OF AN INTEGRATION OF THIRD PARTY ACCOUNTS, SHARING A WEB APPLICATION WITH EXTERNAL USER WITH RESPECT TO PRIVACY AND DATA SECURITY, SESSION COOKIES, AUDIO, VIDEO AND SCREEN SHARING RECORDINGS AND AUDIO, VIDEO AND SCREEN SHARING ANALYSIS.18. STATUTORY CONSUMER RIGHTS.
Nothing in this ToU is meant to contravene statutory rights that consumers may have pursuant to local law.
19. DISPUTE RESOLUTION AND GOVERNING LAW.
19.1. Dispute resolution: Let's Try To Sort Things Out First. Demodesk wants to address the User’s concerns without needing a formal legal case. Before filing a claim against Demodesk, the User agrees to try to resolve the dispute informally by contacting email@example.com.
Demodesk will try to resolve the dispute informally by contacting the User via email. If a dispute is not resolved within 15 working days of submission, the User or Demodesk may bring a formal proceeding.
19.2. Applicable law, jurisdiction: Unless expressly prohibited by local law, the Agreement and warranties are controlled by and construed under the laws of Germany, notwithstanding any conflicts of law provisions; and the German courts in Munich shall have exclusive jurisdiction over any claim arising under the Agreement or warranties. The UN Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
The provisions of this ToU shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement.
Should the User have any questions regarding this ToU, please contact the Demodesk authorized partner serving the User, or write to: Demodesk GmbH, Legal, Franz-Joseph-Str. 9, D-80801 Munich, Germany.