Standard Trial Terms and Conditions

Nerdio grants Customer the right to use Nerdio for Azure (NFA) Service (the “Service”) for thirty (30) days without charge in accordance with these Terms and Nerdio’s Acceptable Use Policy (“AUP”). As consideration for the rights granted herein, Customer agrees (i) to advise Nerdio in writing of any problems or bugs in connection with the operation of the Service and (ii) to either (A) negotiate in good faith to enter into a longer term, fee bearing agreement for the Service on Nerdio’s standard terms or (B) advise Nerdio, in reasonable detail, of the reasons Customer has determined not to continue to use the Service. Any improvements, revisions, or derivatives relating to the Service, including without limitation improvements, revisions, and derivatives suggested by Customer or any of its employees, agents or affiliates or improvements, revisions, and derivatives based on Customer’s use of the Service shall be the sole and exclusive property of Nerdio.

1. Customer will be responsible for all activity occurring under its Service accounts. Customer agrees not to disclose user IDs to any third-party, other than an End-User Customer that is provided access in accordance with Section 3.2 below. Customer will promptly notify Nerdio of any unauthorized use of Customer’s account or of any other breach of security. Nerdio will not be liable for any loss that Customer may incur as a result of someone else using Customer’s passwords or account, either with or without Customer’s knowledge.
2. Customer will abide by all applicable local, state, national and foreign laws and regulations in connection with the use of the Service, including, without limitation, those related to data privacy and the transmission of technical or personal data.
3. Customer warrants that its will have the necessary rights and licenses to all software or services, including without limitation Microsoft Azure, accessed or used by Customer through the Service. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all data input by Customer into the Service.
4. Customer will designate and notify Nerdio ar of the person at Customer with responsibility for the administration of the Service, including such person’s name, position, phone, fax, email, and address.
5. Customer will be responsible for:
   
   1. its users’ compliance with these Terms;
   2. all Internet, communication and other costs associated with use of the Service;
   3. implementing reasonable security and environmental precautions in its facilities and its hardware and software infrastructure; and
   4. reporting to Nerdio all errors in the Service promptly by web submission, e-mail or telephone.
6. Customer will not, and will not permit its users to:
   
   1. permit access to the Service to any persons other than users who have been issued an individual identification or password code by Customer;
   2. remove from the Service any copyright notices, disclaimers or other indicia of ownership or restrictions on use;
   3. use the Service for any purpose that is unlawful or prohibited by the terms and conditions of these Terms;
   4. interfere with or disrupt the integrity or performance of the Service or third-party data or information contained therein;
   5. use the Service in any manner that could damage, disable, overburden, or impair Nerdio's hardware and software infrastructure (the “Environment”), or interfere with any other party's use of the Service;
   6. attempt to gain unauthorized access to the Environment, the Service, the accounts of other customers of Nerdio or computer systems or networks connected to Nerdio’s servers or to the Service;
   7. attempt to obtain any information from the Service through any means that are not intentionally made available to Customer by Nerdio, or otherwise collect information about others;
   8. use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy or other rights;
   9. upload files that contain viruses, Trojan horses, worms, time bombs, corrupted files, or take other actions which purpose or effect is to (a) disrupt, disable, harm, or otherwise impede in any manner or impair the operation of the Environment or the Service; (b) permit unauthorized access to the Environment or the Service; (c) cause the Environment or the Service to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with, or upload software or programs that may damage, the operation of another computer or property of another; or
   10. Access the Service for purposes of monitoring service availability, performance or functionality, or for any other benchmarking or competitive purposes.
7. Except as expressly set forth in Section 3, Customer may use the Service only for Customer’s internal business operations, and may not use the Service to provide service to third parties, including without limitation, through commercial timesharing, rental or sharing arrangements, “service bureau” based services, “application service provider” based services or software as a service (SaaS) based services, or any other use of the Service for the benefit of any third party;
8. Customer will cooperate with Nerdio’s reasonable investigation of Service outages, security problems, and any suspected breach of these Terms.

1. If Customer is a reseller, Nerdio grants to Customer a nonexclusive, nontransferable license to market, offer and/or sell the Service. Customer’s license includes the right to (a) execute and use the Service, for Customer’s business purposes of providing IT management to its end-user customers (“End-User Customers”) and (b) providing End-User Customers with access to the Service on the terms set forth herein.
2. Customer may permit its End-User Customers to access and use the Service, provided that:
   
   1. Customer enters into a service agreement with each End-User Customer containing the restrictions set forth in these Terms and expressly stating that Nerdio is an intended third-party beneficiary of such agreement and will be entitled to enforce such agreement directly against the End-User Customer (the “End-User Agreement”), provided that Nerdio may not enforce the End-User Agreement directly against the End-User Customer unless Customer has failed to do so after request by Nerdio;
   2. if Customer does not have an End-User Customer execute an End-User Agreement or fails to enforce an End-User Agreement after Nerdio’s request, Customer agrees to indemnify, defend and hold Nerdio harmless from any damages that would have otherwise been covered under the End-User Agreement;
   3. Customer will be responsible for use of the Service by any such End-User Customer to the same extent as if Customer were using the Service itself;
   4. Customer maintains the sole responsibility for the sale, managing the End-User Customer relationship, and billing the End-User Customer and will be obligated to pay Nerdio irrespective of whether End-User Customer has received payment from the End-User Customer; and
   5. Customer will notify Nerdio of the identity of each End-User Customer to which Customer provides access to the Service.
3. Nerdio’s Retained Right to Market and Sell. Nerdio reserves the right, without obligation or liability to Customer for payment of compensation or otherwise, to market the Service or any other software or services, directly or indirectly, whether through its own employees, agents or representatives, through other independent representatives, or otherwise, to any persons or entities.
4. Representations; Use of Trademarks. Customer will make no warranties or representations concerning Nerdio or the Service except as authorized in writing by Nerdio. Subject to these Terms, Nerdio hereby grants to Customer a non-exclusive, non-transferable, limited, worldwide, royalty-free right and license to use Nerdio’s trademarks, service marks and corporate and brand identification and indicia, as set forth, solely for purposes of selling the Service, provided that Customer complies at all times with Nerdio’s then current online “Brand Manual”.

Nerdio may terminate Customer’s use of the Service without liability if: (a) Nerdio reasonably believes that the use of the Service violates law, these Terms or the AUP, infringes the intellectual property rights of a third party or poses a threat to Nerdio’s systems, equipment, processes, business or intellectual property; (b) Customer does not cooperate with Nerdio’s reasonable investigation of any suspected violation of these Terms; (c) there is an attack on Customer’s server(s), Customer’s server is accessed or manipulated by a third party without Customer’s consent, or there is another event for which Nerdio reasonably believe that the suspension of Service is necessary to protect the Nerdio network or Nerdio’s other customers; or (d) if required by law. Nerdio will give Customer advance notice of termination of at least twelve hours unless Nerdio determines in Nerdio’s reasonable commercial judgment that a termination on shorter or contemporaneous notice is necessary to protect Nerdio, its customers or others.

1. Confidential Information. Each party understands and acknowledges that any data or information, oral or written, that relates to the other’s research, development or business activities (including without limitation any unannounced products and services, other clients, suppliers, and service providers, business processes and plans, finances, internal operations) which is disclosed or otherwise made available to the other party (collectively, “Confidential Information”) represent valuable confidential information entitled to protection as trade secrets. Each party will keep confidential, will not disclose, and will protect from unauthorized disclosure by its employees and agents, Confidential Information and all copies or physical embodiments thereof in any media in its possession, and will limit access to Confidential Information to those who require such access in connection with this Agreement. Each party will secure and protect the Confidential Information and any and all copies and other physical embodiments thereof in any media in its possession in a manner consistent with the steps taken to protect its own trade secrets and Confidential Information, but not less than a reasonable degree of care. Each party will take appropriate action with its employees who are permitted access to the Confidential Information to satisfy its obligations hereunder.
2. Exceptions. The confidentiality obligations set forth above will not apply to (i) information previously known to the receiving party without reference to Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the receiving party, (iii) information received from a third party under no confidentiality obligation with respect to the Confidential Information or (iv) information required to be disclosed under administrative or court order or in arbitration or litigation arising out of this Agreement.

THE SERVICE IS PROVIDED AS IS AND AS AVAILABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NERDIO DISCLAIMS ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICE. CUSTOMER AND CUSTOMER’S USERS ASSUME ALL RESPONSIBILITY FOR THEIR USE OF THE SERVICE, AND NERDIO ASSUMES NO RESPONSIBILITY FOR SUCH USE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NERDIO WILL NOT BE LIABLE TO CUSTOMER FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY AND EVEN IF NERDIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Nerdio WILL HAVE NO LIABILITY TO CUSTOMER OR ITS USERS ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USERS USE OF THE SERVICE.

Customer acknowledges that, as between Customer and Nerdio, Nerdio owns all right, title and interest in all copyright, patent, trademark, trade secret and other intellectual property rights with respect to the Service and NERDIO Marks. Customer understands and agrees that its use of or access to any of the foregoing Nerdio property in connection with this Agreement will not create in it any right, title or interest, in or to such property, and that all such use or access and goodwill associated with any such use or access will inure to the benefit of and be on behalf of Nerdio.

1. Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Party that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all the necessary power and authority to enter into and perform its obligations under this Agreement and (b) this Agreement has been duly authorized, executed and delivered by it and its execution and delivery of this Agreement, and the performance of its obligations and duties hereunder, will not (i) conflict with or result in any violation or breach of, or constitute a default (or give rise to any right of termination, cancellation or acceleration) under, any terms, conditions or provisions of agreement or other instrument or obligation to which it is a party or by which any of its properties or assets may be bound, except for such violations, breaches or defaults which would not, individually or in the aggregate, have a material adverse effect on it and its ability to perform its obligations under this Agreement.
2. Independent Contractor. Nerdio and Customer are and will remain independent contractors. The Agreement does not constitute a partnership. Neither party is a franchisee, agent or legal representative of the other for any purpose, and neither party has the authority to act for, bind or make commitments on behalf of the other.
3. No Assignment. Neither party may sell, transfer, assign, or subcontract its rights or obligations under this Agreement without the express written consent of the other party. Any attempt to do so without such consent will be null and void. Notwithstanding the foregoing, Nerdio may, without Customer’s consent, assign this Agreement and its rights and obligations hereunder in connection with (i) a merger, combination, consolidation or similar business combination involving Nerdio, (ii) a sale of all or substantially all of Nerdio’s assets, or (iii) a sale of a majority of Nerdio’s outstanding voting securities.
4. Amendments in Writing. No amendment, modification, or waiver of any provision of this Agreement will be effective unless set forth in a writing that refers to this Agreement and is executed by authorized representatives of each party. No failure or delay by any party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.
5. Force Majeure. Nerdio will not be liable or deemed to be in breach of its obligations hereunder for any delay or failure in performance under this Agreement or other interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, act of war, accidents, electronic, computer or communications failures, natural disasters or catastrophes, strikes, or other work stoppages or any other cause beyond the reasonable control of the party affected thereby.
6. Notices. Any notice to be given under this Agreement will be in writing, will be deemed given upon receipt, and will be delivered in person, by e-mail or by overnight delivery service with proof of delivery, to the address set forth in the registration (or such other address previously designated by the receiving party by written notice) to the attention of the receiving party’s designated primary contact.
7. Governing Law; Dispute Forum. This Agreement will be governed by and construed in accordance with the laws of the State of Illinois. The first party initiating any legal action under this Agreement will commence that action in the state or federal courts located in Chicago, Illinois, and each party agrees to the exclusive jurisdiction of such courts with respect to any dispute arising under this Agreement.
8. Entire Agreement; Severability. This Agreement, together with the schedules, amendments, and other attachments, contains a full and complete expression of the rights and obligations of the parties. If any provision of this Agreement conflicts with any schedule, amendment or attachment to this Agreement, this Agreement will control with respect to the subject matter of such schedule, amendment or attachment. This Agreement supersedes any and all other previous agreements, written or oral, made by the parties concerning its subject matter. If any provision of this Agreement is held by a court or arbitration panel of competent jurisdiction to be unlawful, the remaining provisions of this Agreement will remain in full force and effect to the extent that the parties’ intent can be lawfully enforced. Without limiting the generality of the foregoing, it is expressly agreed that the terms of any Customer purchase order will be subject to the terms of this Agreement and that any acceptance of a purchase order by Nerdio will be for acknowledgment purposes only and none of the terms set forth in the purchase order will be binding upon Nerdio.
9. Headings. The headings to these terms and conditions have been included solely for references and are to have no force or effect in interpreting the provisions of the Agreement.
10. Survival. Sections 5, 6, 7, 8 and 9 will survive any termination of this Agreement.