Effective as of August 3, 2016. THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SERVICE.
1. ACCEPTANCE OF TERMS
1.1 Stackify, LLC (“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 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. DESCRIPTION OF SERVICE
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, 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 added to or augmenting the Service are also subject to these Terms.
2.2 Stackify does its very best to make the Service available as detailed in the applicable Service plan, except for: (a) planned downtime (of which we will endeavor to notify You in advance), or (b) any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, or technical failures beyond Our control.
3. GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE
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 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.
3.3 You are responsible for all information, data, text, messages or other materials that You post or is otherwise transmitted 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 as Your plan allows.
3.4 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. DATA PRIVACY AND SECURITY
4.1 In providing You the Service We shall maintain appropriate administrative, physical and technical safeguards, consistent with industry standards, to protect the security, confidentiality and integrity of Your data and the personal data of Your end-users. These safeguards include encryption of Your data in transmission (using SSL or similar technologies), and encryption of Your sensitive data at rest.
a. 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.
b. 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.
c. 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.
5. INTELLECTUAL PROPERTY RIGHTS
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.
6. THIRD PARTY SERVICES
6.1 External Sites. 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.
6.2 Integration. The Service may contain features that enable various Other Services (such as social media services like Facebook and Twitter) 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.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1 Billing and Payments. The Service is made available on a pay-as-you-go basis, calculated on a metered basis and/or per-user basis, depending on Your chosen plan and features, and is charged at the end of Your elected subscription term. Server-based pricing is calculated hourly per installed Agent reporting data to the Service. Your subscription will renew automatically based on Your plan’s renewal cycle. The Service provides an interface for the account owner to change credit card information (e.g., upon card renewal). The account owner will receive a receipt by email upon each payment received, or may obtain a receipt from within the application to be able to track the status of Your subscription. We reserve the right to modify our pricing terms, including the amounts We charge You for the Service, upon providing you thirty days advance notice. If you do not agree to our modified terms, you may immediately terminate this Agreement.
7.2 Modifying Your Subscription. If You choose to upgrade Your plan or increase your number of servers or users during Your elected subscription period, any incremental cost will be added to your bill over the remaining term of the subscription period and charged to Your account. Subsequently, You will be charged the adjusted rate on Your next billing cycle. Regardless of Your billing cycle, there are no refunds or credits for partial months of Service or plan downgrades. No exceptions will be made in order to treat everyone equally and keep Our administrative costs low for the ultimate benefit of Our customer base. Downgrading Your plan level may cause the loss of content, features, or capacity of Your account and Stackify does not accept any liability for such loss. Stackify reserves the right to contact You about special pricing if You maintain an exceptionally high number of end-users, an unusually high number of servers or other items being monitored, or other excessive stress on the Service.
7.3 Overdue Charges. If You fail to pay your subscription fee on time, or if Your credit card payment information is entered in error or does not go through for processing and You do not update payment information upon Our request, your entire subscription may be immediately suspended or cancelled without notice.
7.4 Billing Privacy. Stackify uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Stackify.
7.5 Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Stackify based on its income. We will invoice You for such Taxes if we believe we have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
8. CANCELLATION AND TERMINATION
8.1 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 card will be charged 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.
8.2 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 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.
8.3 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. DISCLAIMER OF WARRANTIES
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.
10. LIMITATION OF LIABILITY
10.1 NO CONSEQUENTIAL DAMAGES. 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.
10.2 LIMITS ON MONETARY DAMAGES. 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.
10.3 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.
11.1 Indemnification by Stackify. 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.
11.2 Indemnification by You. 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.
12. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
You may not assign this Agreement without Our prior written consent, which we may withhold for any or no reason. 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. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Any changes will be published on the website, with or without notice to You, and will be deemed to have been accepted seven days after publication. By continuing to use the Service, You are agreeing to these terms.
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.
14. EXPORT COMPLIANCE AND USE RESTRICTIONS
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 Person’s 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.
15. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 3 (General Conditions/Access and Use of the Service), 5 (Intellectual Property Rights), 7 (Billing, Plan Modifications and Payments), 8 (Cancellation and Termination), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Assignment; Entire Agreement; Revisions), 13 (Severability), 14 (Export Compliance and Use Restrictions), 15 (Relationship of the Parties) and 18 (Governing Law) will survive any termination of these Terms.
17. COMPLIANCE WITH LAWS
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.
18. GOVERNING LAW
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.
19. FEDERAL GOVERNMENT END USE PROVISIONS
If you are a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to you with only those rights as provided under the terms and conditions of these Terms.