Terms & Conditions

This Customer Agreement sets forth the terms and conditions pursuant to which DAERO Group, Inc. (“DAERO”) provides the customer (“Customer”) with access to and the use of DAERO’s proprietary technology solution for task and communications management for construction projects (the “Solution”, the Solution and any services provided by DAERO to Customer in connection therewith, collectively, the “Service”).  This Customer Agreement is incorporated into and governs all access to, receipt of and use of the Service by Customer, including via Orders (as defined herein). Customer’s receipt of services or use of or access to the Solution shall constitute Customer’s unconditional acceptance of any Orders placed by Customer, this Customer Agreement and any additional applicable pricing or other schedules (collectively, the “Agreement”). The Agreement shall be effective upon the earlier of the date this Customer Agreement is accepted by Customer or the date of Customer’s first use of or access to the Service (the “Effective Date”). By indicating acceptance of this Agreement or by otherwise using the Service, Customer is entering into a legally binding agreement with DAERO.  An individual user accepting the Agreement on behalf of an organization represents that such user has the right to bind such organization to the Agreement. An individual user accepting the Agreement in their individual capacity hereby represents that they are of legal age, and are otherwise fully able and competent, to enter into a binding agreement. Any Customer who does not agree to this Agreement must not use the Service.

THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN CUSTOMER AND DAERO, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. 

In consideration of the covenants set forth herein, DAERO and Customer hereby agree as follows:

1. Provision of the Service.  

1.1 Provision Generally.  The Solution is a proprietary mobile and/or web application, ZeroPunch™ by DAERO, designed to support documentation, task management, and communication workflows in construction project environments. The Solution enables Users to capture field-level data, which the Solution will process to assist in the creation, organization, and tracking of construction-related tasks. During the Term (as defined below), Customer will input Customer Data, which may include data, audio transcription, photographs, and location markers into the Solution. “Customer Data” means all data and information which Customer inputs into the Solution or otherwise provides to DAERO. The Service generates outputs for Customers in the form of structured, assignable task reports and documentation (the “Results”). Results are provided as the result of Customer interactions with DAERO’s centralized Software-as-a-Service (SaaS) platform. The Service includes DAERO’s provision of access to the Solution and generation of Results for Customer. The Solution includes any and all of DAERO’s proprietary technology, including a web portal, cloud-hosted software platform, mobile application, products, processes, algorithms, user interfaces, know-how, techniques, designs, data and other tangible or intangible technical material or information. Customer will order the Service by submitting one or more separate orders in writing or via an order page on the DAERO website (“Orders”) which include the quantity of User(s) ordered, Fees (as defined below, if applicable), and start date. “User” means an employee or other authorized personnel of Customer authorized by Customer to use the Service, if Customer is an organization, and the individual user using the Service, if Customer uses the Service in their individual capacity. 

2. Grant of Rights.  Subject to the terms and conditions of this Agreement, DAERO hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right for one or more Customer Users (the number of Users ordered by Customer) to access and use the Service (including, for clarity, the Results), solely for Customer’s internal business purposes, during the Term.  All rights in the Service not expressly granted to Customer are reserved by DAERO and its licensors.  There are no implied rights. 

3. Restrictions.  Customer shall not (and shall not allow any third party to): (a) use the Service or the Results for the benefit of any third party, or to develop or market any product, software or service that is functionally similar to or derivative of the Service, or for any other purpose not expressly permitted herein; (b) disclose the Results to any third party or permit any non-User to access or use the Service or the Results (other than third-party service providers who need to use the Service or the Results in order to provide services to Customer, and who are subject to confidentiality obligations and use restrictions regarding the same); (c) sell, distribute, rent, lease, service bureau, post, link, disclose or provide access to the Service or the Results, directly or indirectly, to any third party; (d) alter, modify, debug, reverse engineer, decompile, disassemble, or otherwise attempt to derive or gain access to any software (including source code), or any other underlying data or technology, associated with the Service; or (e) use any robot, spider, scraper or other automated means to access the Service, or engage in any scraping, data-mining, harvesting, screen-scraping, data aggregating or indexing of the Service. All acts and omissions of Users shall be deemed to be those of Customer, and Customer shall be responsible therefor.  If Users access the Service using passwords, Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Service using passwords issued to Customer and its Users.  Customer shall notify DAERO immediately of any actual or suspected unauthorized use of its passwords for the Service.  Without limiting any of its other rights or remedies, DAERO reserves the right to suspend any User’s right to access the Service if DAERO reasonably believes that such User has materially violated the restrictions and obligations in this Agreement (in which case, it shall provide Customer prompt written notice of such suspension).

4. Customer Cooperation.  Customer shall reasonably cooperate with DAERO in all matters relating to the Service, and respond promptly to any DAERO request to provide information, approvals, authorizations or decisions that are reasonably necessary for DAERO to provide the Service in accordance with this Agreement. Customer acknowledges and agrees that DAERO’s ability to provide the Service and generate the Results is directly dependent on Customer’s provision to DAERO of accurate and complete Customer Data, and that DAERO shall not be liable for delays, inaccuracies or limitations in providing the Results resulting from Customer’s lack of cooperation.

2.  Compliance.  Each Party shall comply with all laws, regulations and ordinances applicable to its activities hereunder (“Applicable Law”). DAERO operates the Service under the Privacy Policy published at https://www.daerogroup.com/privacy-policy.html (the “Privacy Policy”), which is hereby incorporated into this Agreement.  Each party shall comply with the Privacy Policy.

3. Support, Downtime and Security.  

3.1 Support. DAERO will act in good faith to resolve support issues in a timely manner. Support services shall include basic troubleshooting, technical guidance, and assistance with general usage questions, but shall not include enhancements or optimizations of features, which DAERO is not required or guaranteed to provide under this Agreement. Support is available primarily through email and web-based communication channels. DAERO may also provide limited phone-based support, subject to availability and scheduling. DAERO does not guarantee resolution times, but will make reasonable efforts to respond to support requests in a timely manner during normal business hours of M-F during working hours, excluding U.S. federal holidays. Support services do not include on-site support, custom development, integration assistance, or training, unless otherwise agreed upon in writing. DAERO reserves the right to modify the scope, method, or availability of support services at its sole discretion.

3.2 Downtime. DAERO shall use commercially reasonable efforts to provide access to the Service.  From time to time the Service may be inaccessible or inoperable for various reasons, including (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which DAERO may undertake from time to time; or (c) causes beyond the reasonable control of DAERO, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”).  DAERO shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to Customer in the event of any scheduled Downtime.  DAERO shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not.

3.3 Security. DAERO shall implement and maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer Data provided by Customer, including industry standard access controls, firewalls, passwords and malware protection. DAERO will promptly notify Customer if DAERO has reason to believe that there has been any accidental or unauthorized access, acquisition, use, modification, disclosure, loss, damage or destruction of the Customer Data.

4. Ownership and Intellectual Property Rights.  

   2. By DAERO. Customer acknowledges and agrees that all right, title and interest in and to the Service (including the data, information, text, images, designs, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on or made available through the Service, other than the Customer Data and the Results), the Solution and all improvements and derivatives of the foregoing, including all intellectual property and proprietary rights embodied therein or associated therewith, are and shall remain owned by DAERO or its licensors, and this Agreement in no way conveys any right, title or interest in the Service or the Solution other than a limited right to use the Service in accordance with the terms and conditions herein.  No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos.  Customer shall not remove any ZEROPUNCH or DAERO trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.

4.2  By Customer. DAERO acknowledges and agrees that as between Customer and DAERO, all right, title and interest in and to the Customer Data and the Results (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by Customer or its licensors. Customer hereby grants to DAERO a non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Customer Data and Results solely in connection with providing the Service to Customer, and improving and developing the Service. DAERO may analyze Customer Data, Results, and data and results of other customers, and to create aggregated or anonymized statistics or data that do not identify Customer or any individual, and DAERO may during and after the Term use and disclose such statistics and data, information generated from such models.  

4.3 Feedback. In consideration of the provision of the Service hereunder, Customer agrees to provide DAERO with reasonable feedback and suggestions regarding the Service, including potential improvements or changes thereto (collectively, “Feedback”), if requested by DAERO. The Feedback shall include reasonable characterization of user interaction and engagement with aspects of the Service, if requested by DAERO. The Feedback shall be considered Confidential Information of DAERO, and DAERO shall be free to use, disclose, and otherwise exploit in any manner, the Feedback for any purpose and without any payment to Customer.

5. Fees and Other Consideration. 

   2. Basic and Premium Versions.  The basic version of the Service is offered free of charge to registered Users. DAERO reserves the right to charge, and change eligibility requirements, for access to and use of the Service, at any time. DAERO may offer premium versions of the Service with paid subscription plans that allow Users to access additional or exclusive features. 

3. Fees. If Customer purchases a premium version of the Service, unless DAERO has agreed with Customer to invoicing, DAERO will charge Customer’s credit card for the subscription fees (the “Fees”) then in effect on the applicable order or pricing schedule when Customer subscribes to the premium version(s), for the number of Users selected by Customer. All Fees are nonrefundable. DAERO will charge Customer subscription Fees in advance of each applicable subscription term. Customer agrees and represents that all information Customer provides to DAERO for the purpose of subscribing to the Service is accurate, complete and current, and agrees to notify DAERO of any changes to the payment method associated with Customer’s DAERO account, including changes in billing address and expiration dates. If DAERO does not receive payment as due for a premium account, DAERO reserves the right to either suspend or terminate such account and Customer’s access to the premium version in such circumstances. All Fees shall be paid in United States dollars.

4. Taxes.  All amounts due hereunder are exclusive of all sales, use, excise, service, value added, or other taxes, duties and charges of any kind (whether foreign, federal, state, local or other) associated with this Agreement, the Service, or Customer’s access to the Service.  Customer shall be solely responsible for all such taxes, duties and charges (except for taxes imposed on DAERO’s income), which may be invoiced by DAERO from time to time.

5. Payment Method.  If Customer is paying customer, Customer is responsible for maintaining complete and accurate billing and contact information with DAERO. Payments shall be made through credit card authorization, or if agreed to by both parties, by invoice. If the parties have agreed to invoicing, invoices shall be issued on or around the effective date of each applicable subscription term and due within thirty (30) days after date of invoice. If Customer elects to pay through credit card authorization, Customer agrees to execute and deliver to DAERO an authorization agreement for direct payments whereby DAERO shall be irrevocably authorized to charge Customer’s credit card in the amounts required under this Agreement. Customer agrees to undertake any and all required actions, execute any required documents, instruments or agreements, or to otherwise take any action in order to effectuate the requirements of this Section 5.4. If Customer has elected to pay by credit card, and the charge fails for any reason, Customer shall be responsible for ensuring timely payment to DAERO. If Customer has elected to pay by credit card, Customer agrees to notify DAERO of any changes to Customer’s credit card information associated with, including changes in billing address and expiration dates.  

6. Late Payments.  Customer shall pay interest on all late payments at the lesser of (a) 1.5% per month or (b) the highest rate permissible under Applicable Law, calculated daily and compounded monthly.  Customer shall reimburse DAERO for all costs and expenses, including attorneys’ fees, incurred in collecting any unpaid amounts owed by Customer hereunder. DAERO may suspend delivery of Results to Customer if payment is late.

6. Auto Renewing Subscriptions.

2. Auto Renewals. If Customer purchases a subscription package that automatically renews, upon expiration of Customer’s subscription package’s paid term, that subscription package will automatically renew at the billing interval Customer has selected. Unless such subscription package is cancelled by Customer according to the terms set forth in Section 6.2 or by DAERO as allowed by this Agreement, Customer hereby authorizes DAERO (or DAERO’s designated third party payment processor) to charge to Customer’s credit card on file, or a substitute account provided by Customer or Customer’s card issuer, on each subscription renewal date at the billing intervals Customer has selected, the then current subscription rate for Customer’s renewing subscription package, plus any applicable taxes, governmental fees and surcharges, for the duration of the applicable subscription Service as described in Section 7.1. 

3. Cancellation of Subscription. CUSTOMER MAY CANCEL CUSTOMER’S SUBSCRIPTION AT ANY TIME BY PROVIDING NOTICE TO DAERO BY EMAILING DAERO AT [email address] OR CALLING DAERO AT [xxx-xxx-xxxx], STATING CUSTOMER’S NAME AND THAT CUSTOMER IS CANCELING ITS SUBSCRIPTION, OR WORDS OF SIMILAR EFFECT. Customer may also cancel by logging into Customer account on the mobile application or the DAERO website (www.daerogroup.com) and visiting DAERO’s FAQ page, for a pre-formatted cancellation e-mail template, which Customer can send to DAERO. The cancellation will be effective as of the first day of the next subscription interval following the date Customer submitted the cancellation request. If Customer cancels its subscription, DAERO will not automatically renew Customer’s subscription thereafter.

4. Reaffirmation of Authorization. If Customer is a subscriber, Customer’s non-cancellation of Customer’s subscription reaffirms that DAERO is authorized to charge Customer’s payment method for the applicable charge each subscription renewal date. DAERO may submit those charges for payment and Customer will be responsible for such charges. This does not waive DAERO’s right to seek payment directly from Customer. Customer’s charges may be payable in advance, in arrears, per usage, or as otherwise described when Customer signed up for the subscription.

7. Term; Termination.  

7.1 Term.  The term of this Agreement (“Term”) shall commence on the Effective Date. The “Effective Date” shall be the date Customer first accesses the Service, for Users of the free version, or the effective date of access to the premium version, for Users of the premium version. If Customer purchases a paid subscription for the premium version of the Service, the term of such subscription shall commence on the Effective Date for the paid subscription and, unless earlier terminated as set forth herein, shall continue for the subscription term Customer purchases, unless otherwise terminated as described in this Section 7.

2. Termination.  Either party may terminate this Agreement for convenience and without cause at any time by providing thirty (30) days’ prior written notice to the other party (for premium version subscriptions) or by discontinuing use of the Service (for free version accounts). Either party may terminate this Agreement by written notice thereof to the other party, if the other party materially breaches this Agreement and does not cure such breach within fifteen (15) days after written notice thereof. DAERO may terminate this Agreement immediately if User becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.  

3. Effects of Termination; Survival.  Upon any expiration or termination of this Agreement: (a) all rights granted to Customer hereunder shall terminate, and DAERO shall no longer provide access to the Service to Customer, (b) Customer shall cease and cause its Users to cease using the Service, (c) each party shall promptly return or destroy any confidential information of the other party in its possession, and (d) DAERO shall not be liable to Customer, or any third party, for compensation, reimbursement, or damages in connection with Customer’s use of the Service or for termination of access to the Service. Any obligations that have accrued prior to expiration or termination, including payment obligations, shall survive expiration or termination of this Agreement.  In addition, the following Sections, as well as any other provisions herein which by their nature should survive, shall survive expiration or termination of this Agreement: Sections 1.3, 1.4, 4, 5.5,7.3, 9, 9.3, 10-12, 13.2-13.4 and 13.6-13.14.

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8. Customer Responsibilities.  

Customer is solely responsible for all Customer Data provided by Customer, including for the accuracy, integrity and quality of Customer Data.  Customer shall not: (a) upload or otherwise make available to DAERO any Customer Data that violates the rights of any third parties, including without limitation intellectual property or other proprietary rights of any third party; (b) upload or otherwise make available to DAERO any Customer Data that Customer does not have a right to transmit and have processed through the Service due to any Applicable Law or other obligation; (c) upload or otherwise make available to DAERO any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Service or servers or networks connected to the Service; or (e) violate any Applicable Law, including but not limited to those regarding data protection, privacy, proprietary rights and publicity, marketing and advertising, consumer protection, and the export of technical data, in its use of the Service and the Results.  Depending upon the specific services, capabilities, functionalities and experiences implemented for the Customer as components of the Customer-specific Service, Customer Data and/or Results may be subject to applicable policies and terms of third parties whose products or services are consumed by DAERO solutions.  Nothing in this Agreement obviates or supersedes any such applicable policy or term.

9. Representations and Warranties; Disclaimer.

   2. General Representations and Warranties.  Each Party hereby represents and warrants to the other Party that: (a) it is a corporation, company or other entity (as applicable) duly organized, validly existing and in good standing in its jurisdiction of organization; (b) its execution, delivery and performance of this Agreement have been duly and validly authorized by all necessary organizational action on its part; (c) the provisions set forth in this Agreement constitute legal, valid and binding obligations of such Party enforceable against such Party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of this Agreement do not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such Party is subject. 

   3. DAERO Limited Warranty.  DAERO warrants that it will provide the Service in a competent and workmanlike manner.  DAERO does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free.  DAERO makes no warranty regarding features or services (including data or content that is incorporated into the Results) provided by any third parties.  DAERO retains the right to modify the Service and the Solution in its sole discretion; provided that doing so does not have a material adverse impact on the Service hereunder.  Customer’s sole remedy for DAERO’s breach of the warranty in this paragraph shall be that DAERO shall remedy the applicable error, or if DAERO is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the applicable Fees paid by Customer. 

9.3 Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 9.1-9.2 ABOVE, DAERO MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO THE SERVICE AND THE RESULTS (IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE), INCLUDING ANY WARRANTY (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR (B) THAT THE SERVICE OR RESULTS WILL MEET CUSTOMER’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR. THE RESULTS ARE GENERATED FROM DATA PROVIDED BY CUSTOMER; DAERO MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE COLLECTION OF DATA, THE ACCURACY OR RELIABILITY OF THE RESULTS, OR ANY INFORMATION OR RESULTS OBTAINED FROM THE SERVICE. THE SERVICE MAY PROVIDE USERS WITH INACCURATE OR INAPPROPRIATE INFORMATION.  INFORMATION MAY ALSO BE UNRELIABLE.  CUSTOMER IS RESPONSIBLE FOR PROVIDING ADEQUATE NOTIFICATIONS TO USERS REGARDING THE LIMITATIONS OF THE SERVICE’S RESULTS. 

10. Limitations of Liability. 

    2. Damages Cap.  EXCEPT FOR (A) ITS INDEMNIFICATION OBLIGATIONS HEREUNDER, OR (B) ITS BREACH OF THE CONFIDENTIALITY PROVISIONS HEREIN, TO THE FULLEST EXTENT PERMISSIBLE BY LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, DAERO’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE AND THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF (I) THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO DAERO UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE DATE CUSTOMER’S CLAIM AROSE, OR (II) ONE HUNDRED DOLLARS ($100). NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL DAERO’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED FIVE (5) TIMES THE AMOUNT PAID BY CUSTOMER TO DAERO UNDER THIS AGREEMENT.

3. Disclaimer of Indirect Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR THE LOSS OF PROFITS OR REVENUES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. 

11. Indemnification. 

    2. DAERO Indemnification.  This Section 11.1 applies to Customers of paid versions of the Service only. DAERO shall defend, indemnify and hold harmless Customer and its directors, officers, employees and agents (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that the Solution infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).  

    3. Customer Indemnification.  Customer shall defend, indemnify and hold harmless DAERO and its directors, officers, employees, agents and providers (“DAERO Indemnified Parties”) from and against any Claims to the extent based on (a) any claim that the Customer Data Infringes any third party intellectual property or proprietary right (excluding patents), or (b) any other violation of Customer’s obligations under Article 7 above.

    4. Indemnification Process. As conditions of the indemnification obligations in Sections 11.1-11.2 above: (a) the applicable Customer Indemnified Party or DAERO Indemnified Party (the “Indemnitee”) will provide the indemnifying Party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim (provided that the Indemnitee may participate using counsel of its own choosing, at its own expense), and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim.  The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other Party (not unreasonably withheld).

    5. Exclusions.  DAERO’s obligations in Section 11.1 above shall not apply to any Claim to the extent arising from or relating to (a) misuse of the Service (including any use in excess of purchased license or otherwise not strictly in accordance with the documentation therefor, DAERO’s instructions, misuse and abuse policy, and this Agreement), (b) any modification, alteration or conversion of the Service not created or approved in writing by DAERO, (c) any combination of the Service with any software or service not provided by DAERO, (d) DAERO’s compliance with specifications or other requirements of Customer, (e) any Customer Data provided by DAERO, or (f) any data, information or materials which is provided by a third party.  If the Service is or may be subject to a Claim of Infringement described in Section 11.1 above, DAERO may, at its cost and sole discretion: (i) obtain the right for Customer to continue using the Service as contemplated herein; or (ii) replace or modify the Service so that it becomes non-Infringing without substantially compromising its principal functions; or (iii) to the extent the foregoing are not commercially reasonable, terminate this Agreement and return to Customer the portion of any pre-paid Subscription Fees for access to and use of the Service which does not occur due to such termination.  DAERO’s obligations in this Section 11 shall be DAERO’s sole obligations, and Customer’s sole remedies, in the event of any Infringement of intellectual property or proprietary rights by or related to the Service.

12. Confidentiality.  

    2. Definition.  “Confidential Information” means information that is disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of this Agreement by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure.  In addition, (i) the terms and conditions of this Agreement shall be deemed to be Confidential Information of both Parties; (ii) the Customer Data and Results shall be deemed Confidential Information of Customer, and (iii) the Service and the Solution shall be deemed Confidential Information of DAERO, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.    

    3. General Obligations.  Each Party agrees that it will during the Term and thereafter: (a) not disclose the other Party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other Party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under this Agreement; (c) disclose the other Party’s Confidential Information only to those of its employees and agents who reasonably need to know such information for purposes of this Agreement and who are bound by confidentiality obligations offering substantially similar protection to those in this Article 12; and (d) protect all Confidential Information of the other Party from unauthorized use, access or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care.  Notwithstanding the above, this paragraph shall not prohibit: (i) a Party from disclosing Confidential Information of the other Party to the extent required by Applicable Law (including a court order or other government order); provided that such Party provides the other Party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other Party to seek confidential treatment thereof, to the extent such cooperation is requested by the other Party; or (ii) a Party from disclosing the terms and conditions of this Agreement to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors (provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Article 12; provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such Party, as applicable).

    4. Return or Destruction.  Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination or expiration of this Agreement; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, and (b) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under this Agreement that survive such termination or expiration.

13. Miscellaneous.

    2. Assignment. Neither party may assign or otherwise transfer this Agreement, or assign or otherwise transfer any of its rights hereunder, or delegate any of its obligations hereunder, without the prior written consent of the other party; provided, DAERO may assign or otherwise transfer this Agreement, or assign or otherwise transfer any of its rights or delegate any of its obligations hereunder to an affiliate or to a successor to all or substantially all of its assets, stock or business, without Customer’s prior written consent.  Any purported assignment or delegation in violation of this paragraph is null and void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.  

    3. Entire Agreement.  This Agreement (including all Orders, pricing schedules and other attachments hereto, which are incorporated herein by reference) contains the complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto.  No pre-printed terms on any purchase order, invoice or similar document issued in relation to this Agreement shall have any effect on the parties or this Agreement. In the event of any conflict between this Agreement and any Order or other attachment, this Agreement shall control unless the conflicting provision in the Order or other document expressly states that it is intended to control. 

    4. Modification of Service and Agreement.  DAERO reserves the right to modify the free version of the Service at any time, without notice to Customer.  DAERO may also from time to time amend this Agreement prospectively.  If DAERO does so, DAERO will notify Customer by posting on the Service.  Customer agrees that Customer’s continued use of the Service constitutes Customer’s agreement to the amended Agreement.  If Customer does not agree to any amended Agreement that DAERO publishes, Customer must terminate Customer’s account and cease using the Service.  Except as set forth above, this Agreement may be amended or modified only by an express writing signed by DAERO.

    5. Notices. Unless otherwise specifically provided herein, all notices required or permitted by this Agreement shall be in writing and may be delivered personally, or may be sent by e-mail with confirmed delivery, overnight delivery or certified mail, return receipt requested, to the addresses set forth in the signature block below, unless the parties are subsequently notified of any change of address in accordance with this Section.  Any notice shall be deemed to have been received as follows: (a) by personal delivery, upon receipt; (b) by e-mail with confirmed delivery or guaranteed overnight delivery, one business day after transmission or dispatch; or (c) by certified mail, as evidenced by the return receipt.  Customer agrees that email notice may be sent to Customer’s email address on record with DAERO.  

    6. Force Majeure. DAERO shall not be liable or responsible to Customer, nor be considered to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of DAERO, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.

    7. Choice of Law; Arbitration.  This Agreement is and will be governed by and construed under the laws of the State of Delaware, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result.  Any and all disputes or causes of action between Customer and DAERO or its employees, agents, successors, or assigns will exclusively be settled through binding and confidential arbitration. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules. Any claims brought by a party must be brought in such party’s individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s or entity’s claims, may not otherwise preside over any form of a representative or class proceeding, and may not award class-wide relief. The arbitration will be confidential, and neither DAERO nor Customer may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; and each side will pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by Applicable Law. Notwithstanding the foregoing either Party may seek emergency equitable relief before the state or federal courts located in the State of Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the State of Delaware for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.

    8. Injunctive Relief.  Customer acknowledges that its breach of any intellectual property or confidentiality provisions herein (including any limitations or restrictions on use of the Service) will cause substantial harm to DAERO that could not be remedied by payment of damages alone. Accordingly, DAERO will be entitled to seek preliminary, temporary and permanent injunctive relief, and other equitable relief, for any such breach, without any requirement to post bond, in any court of competent jurisdiction.

    9. Relationship of the Parties. The relationship between the parties is that of independent contractors.  Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

    10. Waiver.  No waiver by either party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by such party.  No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.  No waiver shall apply to any other time, or any other right, remedy, power or privilege.

    11. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, (a) such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and (b) such provision, in such jurisdiction, shall be replaced by a valid, legal and enforceable provision that best reflects the parties’ intent for such first provision.

    12. Headings; Interpretation.  Headings are provided for convenience only and will not be used to interpret the substance of this Agreement.  Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes” or “including” in this Agreement shall not be limiting and “or” shall not be exclusive. 

    13. Counterparts; Electronic Assent.  This Agreement may be executed in two counterparts (which may be delivered in a format acceptable to the parties), each of which shall be an original and both of which taken together shall form one agreement.  This Agreement may be executed electronically, and Customer’s electronic assent or use of the Service shall constitute execution of this Agreement.  Customer agrees that the electronic text of this Agreement constitutes a writing and Customer’s assent to the terms and conditions hereof constitutes a “signing” for all purposes.  

    14. Publicity. Neither party will, except as required by law, disclose or issue any press release, and DAERO will not include Customer in any case study, with respect to this Agreement or any transactions contemplated by this Agreement, without the prior written consent of the other party to this Agreement.  Notwithstanding the foregoing, DAERO may use Customer’s name and logo to refer to Customer as a Customer reference in its marketing initiatives including but not limited to its website.

    15. Geography; Children. DAERO provides the Service for use only by persons located in the United States, and makes no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside the United States, Customer does so on its own initiative and is responsible for compliance with local law. The Service is not directed to users under the age of 13.  The Service does not knowingly collect personal information from children under the age of 13.  If Customer is an individual under the age of 13, Customer is not permitted to use the Service or to send personal information to DAERO.

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