1.1 Netreo, Inc. (“Netreo”, “Stackify,” “We” or “Our”) provides its Service (as defined below) to You through its web site located at www.stackify.com and any related sites (the “Site”), subject to these Terms.
1.2 By accepting these Terms, or by accessing or using the Service or Site, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, and that the information You provide in registering to use the Service is accurate, complete, and is Yours or within Your right to use. If You are entering into these Terms on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
1.3 You acknowledge that these Terms constitute a binding, enforceable contract between You and Stackify, even though it is electronic and is not physically signed by You and Stackify, and that these Terms govern Your use of the Service and supersede any other agreements between You and Stackify.
2.1 The “Service” includes (a) the Site, (b) the on-demand Stackify system, tools and Stackify API, and (c) the other services provided to You through the Site based on the plan purchased (your “Account”), including all software, data, text, images, sounds, videos, and other content made available through the Site, or developed via the Stackify API (collectively, “Content”). Any new features or products added to or augmenting the Service are also subject to these Terms.
2.2 Stackify may make changes to the Service as we update our offerings and features. We may add, remove, suspend, or modify features or portions of the Service at any time with or without prior notice to You.
3.1 Subject to the terms and conditions of these Terms, You agree to access and use the Service only for Your internal business purposes as contemplated by these Terms. Subject only to Your limited right to access and use the Service as expressly granted to You here, all rights, title and interest in and to the Service and its components, including all related intellectual property rights, will remain with and belong exclusively to Stackify and its third-party vendors. We hereby grant to You a limited, non-exclusive, revocable license to use the Content solely in connection with Your use of the Service and otherwise in accordance with these Terms.
3.2 In registering for the Service, You agree to provide and maintain accurate, current, and complete information about Your administrative contact (“Primary Administrative Contact”) and billing contact (“Primary Billing Contact”) for Your use of the Service. You agree not to create an account using a false identity or information. Stackify will provide any notice to You permitted or required by these Terms, using either the Primary Administrative Contact or Primary Billing Contact email address You have provided, or both at our discretion, and if for any reason the notice email is not able to be delivered to You, our dispatch of the email containing such notice will nonetheless constitute effective notice.
3.3 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service or Content available to any third party, other than as expressly permitted by these Terms; (b) modify, adapt or hack the Service or Content to falsely imply any sponsorship or association with Stackify, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (c) use the Service or Content in any unlawful manner, including but not limited to violation of any person’s privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (d) use the Service or Content in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service or Content; (f) use the Service or Content to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (g) try to use, or use the Service or Content in violation of these Terms.
3.4 You are responsible for all information, data, text, messages or other materials that You post or is otherwise transmitted by You via the Service. You are responsible for maintaining the confidentiality of Your login and account, and are fully responsible for any and all activities that occur under Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people. You may create separate logins for as many people within your organization and affiliates as Your plan allows.
3.5 Stackify may require you to accept updates to portions of the Service and any Content installed on Your computers or devices from time to time. You acknowledge and agree that Stackify may update the Service and Content with or without notifying you. You may need to update third-party software from time to time in order to use the Stackify Service.
3.6 Stackify’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
4.2 You retain all rights and ownership in electronic data and information uploaded or transmitted to the Service by or on Your behalf and made available in your Account (“Customer Data”). Stackify does not claim any ownership rights in your Customer Data.
4.3 You acknowledge, agree, and warrant that you are legally able to process your Customer Data and are legally able to transmit Your Customer Data to Stackify and any of its affiliates, including obtaining appropriate consent or rights for such processing. You shall be solely responsible for ensuring that any processing of Customer Data by Stackify and/or You via the Service does not violate any applicable laws. You shall not process or submit to the Service any Customer Data that could be legally considered sensitive in any applicable jurisdiction, including any: (i) “protected health information,” as defined under the Health Insurance Portability and Accountability Act, unless You have entered into a separate agreement with Stackify relating to the processing of such data; (ii) personal data about individuals under the age of 16; (iii) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state-issued identification numbers; (iv) financial account information, including bank account numbers; (v) the combination of a username or email address along with a password or security question that would permit access to an online account; (vi) payment card data, including credit card or debit card numbers; or (vii) special categories of personal data, as defined under Regulation (EU) 2016/679 of the European Parliament (“GDPR”) or any national laws adopted pursuant to GDPR, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual orientation, genetic data, biometric data, or the commission or alleged commission any crime or offense. Stackify shall not be liable to the extent that you process or submit Customer Data to the Service in breach of this Section 4.3.
4.4 Each party shall comply with its respective obligations under applicable data protection laws. Each party shall maintain appropriate administrative, physical, technical and organizational measures that ensure an appropriate level of security for Your Customer Data. Stackify will process Customer Data in accordance with the Data Processing Addendum, which can be requested at https://stackify.com/gdpr. You are responsible for ensuring that the security of the Service is appropriate for Your intended use and the storage, hosting, or processing of Your Customer Data.
4.6 If at Stackify’s reasonable determination, you are using the Stackify Service in a manner that violates laws, creates an excessive burden or potential adverse impact on Stackify’s systems, in addition to any of its other rights or remedies, Stackify may, without liability to Stackify, immediately suspend your access to the Stackify Service.
5.1 Pursuant to these Terms, each party (“Receiving Party”) may, from time to time, learn, receive, hold, or have access to (in written, oral or electronic form) Confidential Information from the other party (“Disclosing Party”). “Confidential Information” means any information, technical data, or know-how, whether or not a statutory “trade secret” of the Disclosing Party, including, but not limited to, that which relates to research, product plans, intellectual property, products, services, customers, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the Disclosing Party. The foregoing notwithstanding, Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; or (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same.
5.2 During the term of this Agreement and at all times thereafter, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees, and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure.
5.3 Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder: (i) pursuant to a mandatory discovery request, disclosure requirement, subpoena, court order or other order of a court, tribunal or government agency received by a party, in each case, only after the party receiving same has given prompt written notice thereof to the Disclosing Party; or (ii) to the Receiving Party’s own legal counsel or independent accountant who have a need to know such Confidential Information. In each of (i) and (ii) of this paragraph, the Receiving Party shall (a) consult with the Disclosing Party prior to the disclosure of any Confidential Information, and (b) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense and in the Disclosing Party’s discretion, with any reasonable effort to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information.
Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, software, source code, and other functional components thereof, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). Stackify shall at all times, and shall continue to be, the sole and exclusive owner of all Intellectual Property Rights and interests in and to the Service and the Content, including all modifications, enhancements, improvements and derivative works made thereto. The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service or Content, or in any Intellectual Property Rights associated therewith. Stackify shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You. Stackify, Stackify’s other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of Stackify (collectively, “Marks”), and You may only use such Marks to identify yourself as a customer and user of the Service, provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Stackify, its services or products.
7.1 The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. Stackify is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.
7.2 The Service may contain features that enable various Other Services to be directly integrated into your Stackify experience. To take advantage of these features, You will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Service, You are allowing Stackify to pass Your log-in information to these Other Services for this purpose. Your activities with respect to these Other Services shall be governed by the respective terms and conditions of the Other Services, and We expressly disclaim all liability with respect to your interaction with Other Services.
8.1 You will pay all fees specified in Your ordering or purchasing documents, which may include but are not limited to, an order form, email authorization, or order submitted via our website (“Order Forms”), and authorizes Stackify to charge using Your selected payment method, for all applicable fees. Except as otherwise specified on the Order Form: (i) fees are quoted and payable in United States dollars; and (ii) fees are non-cancellable and non-refundable except as required by law. You are responsible for providing complete and accurate billing and contact information to Stackify. Stackify may degrade, suspend, or terminate the Service, in addition to other rights and remedies, if any fees are past due.
8.2 We will charge your selected payment method or invoice You in accordance with the Order Form(s). Unless otherwise stated in the Order Form, invoiced charges are due upon receipt.
8.3 If You require the use of a purchase order or purchase order number, You must (i) provide the purchase order number at the time of purchase; and (ii) You agree that any terms and conditions on Your purchase order or any other related documentation submitted by or on behalf of You will not apply to this Agreement and such purchase order terms are null and void.
8.4 All fees are exclusive of taxes, and You shall pay or reimburse Stackify for all taxes arising out of transactions contemplated by this Agreement. If You are required to withhold any tax for payments due, You shall gross Your payments to Stackify so that We receive sums due in full, free of any deductions. As reasonably requested, You will provide documentation to Stackify showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on Stackify’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that Stackify can rely on the name and address that You provide to Us when You agree to the fees or in connection with Your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where You have established Your business.
8.5 UNLESS OTHERWISE AGREED IN WRITING, YOUR ACCOUNT IS SET TO AUTO RENEW, AND STACKIFY SHALL AUTOMATICALLY CHARGE YOU AT THE END OF THE TERM FOR THE RENEWAL FOR ADDITIONAL PERIODS EQUAL TO THE CURRENT SERVICES AND EXPIRING TERM, UNLESS EITHER PARTY GIVES NOTICE OF NON RENEWAL AT LEAST THIRTY (30) DAYS PRIOR TO EXPIRATION OF THE THEN-CURRENT TERM. The fees for any such renewal term shall be the same as that during the prior term unless Stackify has given You notice of a fee increase, in which case the fee increase shall be effective upon renewal and thereafter.
8.6 Stackify must receive written notice of any disputed charges or invoices from You within ten (10) business days of the invoice date. The dispute notice must in reasonable detail provide the information concerning the disputed charges or invoices.
9.1 You or the Account owner (as defined in the sign-up procedure) is responsible for canceling Your Account, and can cancel the account by either using the account information page (for immediate cancellation if You paid by credit card) or by contacting Stackify at [email protected]. There are no other means of canceling Your account. Once You cancel Your account You will lose access to all of Your content, and We reserve the right to delete all such content in the normal course of operation. This content cannot be recovered once Your account is cancelled. If You cancel the Service before the end of Your current subscription period, Your cancellation will take effect immediately, Your payment method will be charged or you will be invoiced, as applicable, for the amount of service accrued up to that point during the current subscription period, and You will not be charged again. However, under no circumstance will You receive a refund if You elect to cancel before the end of any subscription period.
9.2 Stackify reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or Your use of the Service), and remove and discard any of Your content within the Service if We believe that You have violated these Terms. Stackify will use all reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of Your use of the Service, and may be referred to law enforcement authorities. Stackify shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service.
9.3 Upon termination or cancellation of this Agreement, You shall immediately cease all access to the Service and the Content, shall return all Confidential Information to Us, shall delete all Content and other access to the Services from Your system, and shall immediately pay outstanding amounts due to Us, if any.
9.4 Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of all related information, files and data associated with or inside your Account, including your Customer Data. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of your Customer Data associated from our live databases. Stackify will not have any liability whatsoever to you for any suspension or termination, including for deletion of your Customer Data.
THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND STACKIFY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT STACKIFY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM STACKIFY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS, THE CONTENT OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, STACKIFY’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE OR CONTENT, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF STACKIFY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
11.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, STACKIFY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12.1 Stackify will indemnify and hold You harmless from and against any claim against You by reason of Your use of the Service or the Content as permitted hereunder brought by a third party alleging that the Service or the Content infringes a valid patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). Stackify shall, at its expense, defend such Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Stackify for such defense, provided that (i) You promptly notify Stackify of the threat or notice of such Claim, (ii) Stackify will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) You fully cooperate with Stackify in connection therewith. If Your use of the Service or Content has become, or in Stackify’s opinion is likely to become, the subject of any such Claim, Stackify may at its option and expense (a) procure for You the right to continue using the Service or the Content as set forth hereunder; (b) replace or modify the Service or the Content to make it noninfringing; or (c) if options (a) or (b) are not reasonably practicable, terminate these Terms and repay You any unused Service fees. Stackify will have no liability or obligation under this Section 11.1 with respect to any Claim if such Claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than Stackify; (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing; or (iv) You or Your end users’ negligence. The provisions of this Section 11.1 state the sole, exclusive and entire liability of Stackify to You and constitute Your sole remedy with respect to a Claim brought by reason of Your permitted use of the Service.
12.2 You agree to defend, indemnify, and hold harmless Stackify from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your and Your end users’ negligence or access to, use, misuse or illegal use of the Service. Stackify will provide You notice of any such claim, suit, or proceeding. Stackify reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Stackify’s defense of such matter.
13.1 You may not assign this Agreement without Our prior written consent, which we may withhold for any or no reason.
13.2 This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement, and this Agreement supersedes and replaces any and all previous agreements between the parties.
13.3 Stackify may update these Terms from time to time. The most current version of these Terms will be posted on the Site, and will include an updated “Effective” date at the top of the Terms. Changes to the Terms will be effective immediately for new users of the Service and Content, and effective seven (7) days after posting on the Site for all other users. If we determine in our sole discretion that an update is material, we will notify you through the Service and/or by email to the Primary Administrative Contact and/or Primary Billing Contact email address associated with the Account. If you do not agree to any changes, you shall stop using the Service and Content. Otherwise, continued use of the Service and Content constitutes Your acceptance of such change(s).
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
Software and other materials from this Site may be subject to United States Export Control. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from this Site may be downloaded or exported (1) into (or to a national or resident of) any United States embargoed countries; (2) to anyone of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List.
Stackify does not authorize the downloading or exportation of any software or technical data from this Site to any jurisdiction prohibited by the United States Export Laws.
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All provisions of these Terms, which by their nature should survive, shall survive termination of Service, including without limitation ownership provisions, warranty disclaimers and limitations of liability.
Each party represents and warrants that it and its employees and independent contractors, if any, shall comply with all federal, state, local or other law or regulatory authorities in performing its obligations under this Agreement.
These Terms shall be governed by the laws of the State of Nebraska without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Nebraska, for the purpose of resolving any dispute relating to Your access to or use of the Service.
Stackify’s Services, Software and Documentation were developed exclusively at private expense and are a “commercial item” as defined in Federal Acquisition Regulation (“FAR”) 2.101, and any supplement is provided with no greater than RESTRICTED RIGHTS. Such Services, Software, Documentation, and related items consist of “commercial computer software,” “commercial computer software documentation,” and commercial technical data as defined in the applicable acquisition regulations, including FAR 2.101 and FAR Part 12. Use, duplication, release, modification, transfer, or disclosure (“Use”) of the Services, Software, and Documentation are restricted by this Agreement and in accordance with Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 227.7202 and FAR Section 12.212, and the Services, Software, and Documentation are licensed (i) only as commercial items; and (ii) with only the rights granted to commercial end users pursuant to this Agreement. Such Use is further restricted by FAR 52.227-14, 252.227-7015, or similar acquisition regulations, as applicable and amended. Except as described herein, all other Use is prohibited. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause addressing government rights under this Agreement or any other contract under which the Services, Software, or Documentation is acquired or licensed.
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